Consider the employee who’s always out on Mondays, Fridays, or the days before and after holidays. Suspicious? Perhaps. But what to do about it?
Marc Koonin, an attorney with the San Francisco office of Sedgwick, LLP, spells out some of your options. For Koonin’s tips from yesterday, click here.
Monitor employee leaves, and watch for patterns that might indicate abuse of intermittent leave.
You’re already required to track FMLA and CFRA leave, and you should be cognizant of patterns that might indicate an abuse of leave, such as leaves that are always or frequently scheduled on Mondays and Fridays or the day before employer holidays.
You may not request recertification under the CFRA until expiration of the time period the healthcare provider originally estimated the employee needed for her own serious health condition.
Additionally, while the FMLA expressly allows you to require an employee on intermittent leave to furnish a fitness-for-duty certification every 30 days based on reasonable safety concerns, the CFRA is silent about whether you can impose any fitness-for-duty requirement for employees on or returning from intermittent leave.
Based on the CFRA rule prohibiting early recertification, though, you probably shouldn’t seek a fitness-for-duty certificate for employees on or returning from intermittent leave (and certainly not every 30 days).
However, to the extent that the certification for intermittent leave isn’t permanent, FMLA regulations provide that a request for recertification can include a record of an employee’s absence pattern along with a request that the healthcare provider determine whether the employee’s serious health condition and need for leave are consistent with such a pattern. Whenever possible, take advantage of this provision.
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When appropriate, investigate and be willing to discipline alleged abuse of leave.
You must proceed cautiously with disciplining employees on protected leave because you’re prohibited from discriminating against them or interfering with their right to take leave. That means that while you can discipline employees for reasons other than taking protected leave, the burden will be on you to justify any such discipline.
Regardless, when you receive credible evidence that an employee is abusing leave, an investigation and, if substantiated, discipline may be in order. You should consult with counsel before conducting an investigation or taking final action, however, as the fact that an employee is engaged in alternative activities (including other work) by itself isn’t enough to establish that he isn’t entitled to FMLA and CFRA leave.
Bottom Line
Although there may be no silver bullet to entirely eliminate abuse of intermittent leave, by following the above steps, you can minimize and manage abuse of intermittent leave taken to care for a serious health condition.
Leave Mistakes: Better Prevented Than Remedied
The best way out of a sticky leave-related dispute is to avoid getting embroiled in it in the first place. And to do that, you need current, complete info on the web of state and federal leave laws that apply to you in California—as well as clear explanations of how they interact with one another.
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