by Lisa Berg
One of employers’ most common complaints about administering Family and Medical Leave Act (FMLA) leave is employees’ tendency to abuse intermittent leave. When combatting this type of fraud, employers must navigate tricky U.S. Department of Labor (DOL) regulations as well as federal court rulings that limit the type of information that can be obtained from employees. While no perfect solution exists, employers can take steps to prevent abuse and manage intermittent leave. This article provides guidance on what you can do to minimize the impact of intermittent FMLA leave on your business. 
Strategies for curbing abuse
The FMLA allows eligible employees to take 12 weeks of job-protected leave for family and medical reasons, including a family member’s serious health condition, and up to 26 weeks for military caregiver leave. Leave can be taken in one block or intermittently (i.e., in separate blocks because of a single qualifying reason). Employees requesting intermittent FMLA leave must provide you with at least 30 days’ notice when the need for leave is foreseeable. If the need for leave is unforeseeable, employees must notify you “as soon as practicable.” Fortunately, you can take the following steps to help prevent intermittent FMLA leave abuse:
- Require employees to provide medical certification to establish that intermittent leave is necessary. Medical certification is the best tool for curbing abuse because it forces an employee to substantiate her claim that she or a family member has a serious health condition.
- Examine medical certifications closely to ensure they have been properly and fully completed. When a certification has missing entries or is ambiguous, you may require the employee to provide complete and sufficient information. Your request must be in writing, specify why the certification is incomplete or insufficient, and provide the employee seven days to provide the additional information.
- Require employees to work with you to schedule planned medical treatments during nonworking hours. The FMLA’s regulations allow you to require employees to schedule planned medical treatments in a way that least disrupts your operations.
- Assign employees who are taking intermittent leave to alternative positions to cause less disruption. (This is only permitted in certain circumstances, see 29 CFR § 825.204.) If an employee’s continued intermittent absences interfere with your operations, he may be temporarily transferred to an alternative position until his FMLA leave is concluded. However, the transfer may not result in a loss of pay or benefits or be used to discourage employees from taking leave.
- Require employees to provide recertification frequently. You may request recertification (1) no more than every 30 days in connection with an absence or (2) when the minimum duration from a prior certification expires if the minimum duration exceeds 30 days. You may request recertification more frequently if an employee asks for an extension of leave, circumstances change (e.g., an employee’s absences aren’t consistent with his prognosis), or you doubt the legitimacy of the employee’s medical status (e.g., Monday or Friday absences). Recertification must be done at the employee’s expense, which is a strong deterrent to fraudulent claims.
- Ask for a new medical certification for each 12-month period.
- Adopt a policy that requires accrued paid leave to run concurrently with unpaid FMLA leave. Employees are less likely to abuse intermittent FMLA leave if they are required to use up their vacation time each time they take leave.
- Establish and enforce reasonable attendance and call-in procedures. The FMLA allows employers to enforce established no-call, no-show policies for employees on FMLA leave. Generally, you can require employees who request unforeseen intermittent leave to provide the appropriate notice under an established call-in procedure. The key to avoiding abuse is consistent policy enforcement, which includes disciplining employees who fail to provide proper notice.
- Be on alert for obvious abuse patterns, such as absences on Mondays and Fridays. According to the FMLA’s regulations, you may ask for recertification if you receive “information that casts doubt on the stated reason for the leave.” A pattern of absences on Mondays or Fridays is enough to cast doubt, and you can ask an employee’s healthcare provider to address the issue.
- Require second and third opinions. Many employees ask friends in the medical profession to provide certification to support intermittent leave. If you have a reason to doubt the validity of an initial certification, you may require a second opinion from a healthcare provider of your choice. However, the provider cannot be employed by your company on a regular basis. If the first and second opinions differ, you may require an employee to see a third healthcare provider at your expense. The third opinion will be binding, and you cannot seek second or third opinions for recertification.
- Count missed scheduled overtime against an employee’s FMLA leave entitlement. If an employee is scheduled to work 48 hours in a workweek but works only 40 hours because he took intermittent leave, then eight hours can be counted against his FMLA entitlement. Voluntary overtime hours an employee misses because of a serious health condition cannot be counted against his FMLA leave entitlement.
- Adopt a written policy that prohibits employees from working second jobs while on any type of leave, including FMLA leave. This may prevent employees from taking intermittent or reduced-schedule leave to make extra money on the side.
- Hire a private investigator to conduct surveillance on an employee if you suspect fraud. Employees who engage in fraud while on FMLA leave are not immune from disciplinary action or termination. A policy that prohibits misrepresentations and misuse of FMLA leave will help support termination decisions.
Bottom line
While most employees use FMLA leave legitimately, it is important for employers 
to have an effective antifraud system in place to deal with employees who abuse the system. These strategies will hopefully help prevent intermittent FMLA leave abuse.
Lisa Berg is a Shareholder in the Labor and Employment Law Department of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., practicing in the firm’s Miami office. She may be contacted at lberg@stearnsweaver.com
Need to learn more? Medical certification (and recertification) are essential tools for fighting FMLA abuse. Knowing how to systematically use medical certifications can help you determine who should be approved for leave and even realize when a fake claim has been made. And, most importantly, the smart use of medical certifications can also help you prevent costly lawsuits. Join us on February 18 for Employee FMLA Certifications: Practical Rules to Avoid Legal Mistakes in-depth webinar on how to master FMLA certification challenges and stay out of court. You’ll gain insights on the ins and outs of how to use medical certifications to overcome difficult administrative and intermittent leave challenges and handle cases of suspected FMLA abuse. For more information, click here.
This is helpful information for signs of abuse of the employee by the employer. What about employee rights while on intermittent FMLA there’s verbal abuse by a manager. Perhaps he/she doesn’t like to deal with conditions of FMLA. Caring for a husband diagnosed and receiving treatment for cancer.