HR takes role of referee when employees ‘game’ the FMLA system

Put a dozen human resources professionals together and ask them about problems related to the Family and Medical Leave Act (FMLA), and you’re likely to hear many dozens of stories. The rules can be complicated and intricate, and unscrupulous employees manage to find creative ways to take more leave than they’re entitled to have. 

Recently, attorneys accustomed to FMLA abuse were asked what to do about an employee suspected of abusing his FMLA leave. The employer felt that whenever the employee wanted to take time off and his request was denied because the company was struggling through a busy time, the employee would just call in and report his absence as FMLA leave. The employer wanted to know what precautions to take to avoid FMLA abuse.

“This is a recurring problem when an employee knows how to ‘game’ the system,” Jerrald L. Shivers, an attorney at The Kullman Firm in Jackson, Mississippi, says. “If the employee needs leave intermittently for planned medical treatment, he must make a reasonable effort to schedule the treatment so as not to disrupt your operations unduly, and you do have a right to ask for a list of planned or scheduled FMLA absences for that treatment.”

Shivers reminds employers that they have a right to a certification from the employee’s medical provider describing the need for FMLA absences, the expected duration of the condition, and the likely duration and frequency of episodes when the employee isn’t able to work.

“If the employee’s stated reason for an absence is not covered by the medical certification or if you receive information that causes you to doubt the stated reason or the continuing validity of the medical certification, you may ask for a recertification,” Shivers says.

Although an employer has the right to ask for a list of planned absences, there is no requirement that the certification include such a list, Jonathan C. Sterling, an attorney with Carlton Fields Jorden Burt in Hartford, Connecticut, says, but the employer still has options.

“If you have a certification, one option to curb FMLA abuse is to obtain a second opinion from a healthcare provider you select.” Sterling says. “If that provider’s opinion differs from the opinion of the employee’s healthcare provider, you and the employee would need to agree on a provider to give a third opinion, which would be binding.”

Shivers reminds employers that the provider giving the second opinion should not be one the company uses regularly, though.

Ryan B. Frazier, an attorney with Kirton McConkie in Salt Lake City, Utah, advises employers to first make sure the employee is eligible for FMLA leave. The employee must have worked for an employer covered by the law for at least 12 months and have worked 1,250 hours during the previous 12 months. Also, the employee must work at a location that has at least 50 employees or a location that has at least 50 employees within a 75-mile radius.

Next the employee should be allowed to take leave only for the reasons allowed under the law—his own serious health condition or to care for an immediate family member with a serious health condition, Frazier says. Then the employer should track the employee’s use of leave and require the employee to provide notice when leave is foreseeable.

The employee also should provide the medical certification that the employer can use to verify the employee’s serious health condition and need for leave, Frazier says, adding that the employer needs to be consistent in how it treats employees taking FMLA leave.

Steve Jones, an attorney with Jack Nelson Jones & Bryant, P.A. in Little Rock, Arkansas, points out that employees are to provide at least 30 days’ notice before taking foreseeable leave, but for unforeseeable leave, employees must provide notice only as soon as practical under the circumstances.

“You may require the employee to comply with your usual and customary notice and procedural requirements for requesting leave absent unusual circumstances,” Jones says. “If the employee doesn’t do so and no unusual circumstances exist, the FMLA-protected leave may be delayed or denied.”

Another way to discourage abuse is to require recertification as often as allowed under the law, Rachel Burke, an attorney with Porter Wright Morris & Arthur LLP in Cincinnati, Ohio, says. If the employee’s initial certification indicates that he will need no more than 30 days off, the employer can seek recertification after 30 days. If the certification shows that the employee needs more than 30 days, the employer should seek recertification at the end of the time off or after six months, whichever occurs first.

Burke says more frequent recertification requests are allowed if circumstances change significantly, the employee asks for an extension of leave, or the employer receives information casting doubt on the validity of the certification.

The employee can be required to schedule planned appointments so that they disrupt operations as little as possible, Burke says. Transferring the employee to a position that can better accommodate the leave is another option.

Sometimes, though, it may be necessary to check on how the employee is using the time off. “If you believe the leave was obtained fraudulently, hire a private investigator to monitor the employee while he is on leave,” Burke says.