As an employer, the Family and Medical Leave Act (FMLA) leave can be tricky to administer. After all, employers have competing goals: They want to meet their legal obligation to employees (and likely have a desire to help employees get through the situation they’re in, which is necessitating the leave), but they also want to minimize workplace disruption and lost productivity. Clearly, an employer needs to meet all legal obligations and likely desires to assist an employee who is in a difficult situation; but, an employer also does not want to be taken advantage of in this scenario either.
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One of the biggest concerns for employers with FMLA leave is abuse of the system. Thankfully, there are steps an employer can take to minimize how often FMLA abuse occurs. By minimizing abuse, employers can continue to meet those competing goals: meeting their employees’ needs while minimizing disruption.
Tips for Minimizing FMLA Abuse
Here are some tips for minimizing FMLA abuse:
- Ensure all managers who are involved with tracking or managing employee absences are trained in how FMLA regulations work and how they should be administered. Ensure that your organization has a process in place for managers to work with HR to complete the process consistently for all eligible employees.
- Have a means to consistently track FMLA use, including intermittent FMLA use, to ensure that employees are using only what they’re entitled to.
- Require a medical certification to be completed for all new FMLA leave requests and to be updated as allowed under the regulations. If you have reason to question the authenticity of the medical certification, follow up with the healthcare provider to confirm that the medical certification originated there. (Note: Employers cannot ask for additional medical information; they can, however, confirm authenticity or receive clarification of restrictions.)
- If you doubt the validity of the medical certification, require the employee to get a second opinion. (Note: This will be at the employer’s expense.) If the second opinion differs from the original healthcare provider’s opinion, the employer will then pay for a third opinion, which becomes binding.
- Consider requiring employees to use up their paid leave either before taking FMLA or concurrently with their FMLA. This step alone may deter someone from abusing the system if he or she is faced with losing their paid days.
- Have a leave policy that outlines how much notice is required (such as 30 days) for any planned leaves, and consistently apply that policy.
- For planned medical leaves and for advance-scheduled medical treatments or appointments, employers can require employees to try to work around the business schedule when creating appointments or procedure schedules.
- When advanced notice is not possible, ensure that other standard call-in procedures are still followed. (Standard call-in procedures should be followed for any unplanned absences, not just for FMLA leave.)
- Upon returning from medically necessitated FMLA leave, consider requiring all employees to provide “fitness-for-duty” certifications from their healthcare provider.
- If fraud is suspected, consider conducting an investigation to determine whether or not fraud is occurring. Some employers hire third-party investigators, for example.
By making the process consistent and by having specific requirements for everyone who takes FMLA leave, employers can cut down on FMLA abuse and can minimize unnecessary productivity losses.
*This article does not constitute legal advice. Always consult legal counsel with specific questions.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.