Expert Gives Tips on Preventing Intermittent Leave Abuse

Barbara Dahlen, Human Resources manager for Bellefontaine Habilitation Center in St. Louis, Missouri, knows a few things about preventing intermittent leave abuse. As a speaker at a recent seminar sponsored by the Society of Human Resource Management (SHRM), Ms. Dahlen noted that she has had success, particularly now, by making good use of the new leave designation form and by requesting additional information when the form is returned with insufficient information.

Before assuming her current position, Dahlen was HR manager for a large pasta manufacturer. It took her a couple of years to figure it out, she says.

“You can’t fix intermittent abuse overnight … But it will get fixed if you stick with it,” she says. She added that she is “not a lawyer, and she doesn’t play one on TV”—but she is an HR manager who has a handle on intermittent leave.

“Although my techniques have been successful at reducing intermittent leave,” Dahlen explains, “they are not particularly employee-friendly … Employees don’t like them, and it makes some employees angry.

“I’m not the most popular person at the facility,” she admits. “But there is one group that really likes what I’m doing—the other employees who have been picking up the slack for the intermittent leave abusers. If I can keep the abusers at work, my good employees are happy.”

Patience Is a Virtue

Dahlen has people who treat FMLA as a game. “They think eventually you’ll forget, and they’ll get away with it. So you have to have a lot of patience, you have to devote a lot of time, and you have to have executive leadership who will listen to employees complain about you and stand strong,” she says.

She has had grievances, EEOC charges, Human Rights Commission charges, and others. She has only lost one, a DOL charge, she adds. She also saves some time by taking a practical approach to certain situations.
For example, she says, “for chronic conditions under the FMLA, there have to be two doctor visits per year, and you may make your certification provisional until both visits are completed. However, waiting for the second visit is extra work for HR and, almost invariably, they’ll make that second visit, even if it’s just to renew prescriptions.  Certainly, if it’s asthma or a heart condition, chances are they are going to have that second visit, so we are not enforcing it. We just assume the second visit will take place, and authorize the leave.”

Dahlen does require recertification every 6 months. “You can do that,” she says, “and it keeps the employees being a little more proactive. And maybe you can reduce the FMLA hours down a little the second 6 months.”

Hire Professionals

Dahlen says that it is essential to have a nurse case manager or someone with a medical background to review certifications. She runs all her “certs” by the medical professional for review.  For example, Dahlen asks questions such as: “This employee has uncontrolled asthma and needs to miss 8 days a month. Does that sound right to you?” Dahlen says “those are reasonable questions. You need to know how long typical situations take to recover from. If my nurse case manager says no, I send for a second opinion.”

You also need good legal counsel, Dahlen advises. “When you send people for second or third opinions, or when you get charges, it’s cheaper to deal with it at the front end. If your attorney knows how and why, they can make an intelligent call to the agency or other attorney,” she contends.

Require Recertification

As certifications expire, Dahlen is requiring everybody to get a new one. She explains to employees that what was acceptable before isn’t acceptable under new regulations and new policies the company has. Take the form to the doctor, get it filled out correctly, and bring it back, she tells them. “More certs now come back correct,” Dahlen says, “because the new form has blanks that make it easier for the doctor to deal with it.”

Other Tips and Techniques

• Dahlen offers several techniques HR managers can use to make sure they are doing their best to deal with intermittent leave.
• Require employees to burn paid time. The faster you burn it, the faster you solve your attendance problems. For example, Dahlen says, “a lot of people have 40-hours-per-week restrictions. That’s tough in a manufacturing environment where you’re working people 60 hours a week. But one thing you can do is to charge the extra hours they are scheduled to work and don’t, or an extra day they are scheduled to work and don’t, onto FMLA. That is a good way to burn up FMLA.”
• Build an on-call workforce. Start to develop a casual, part-time, or on-call workforce. When people don’t come in, you bring in your on-call people. That’s much cheaper than overtime, Dahlen says.
• If they come in long enough, eventually they have the skills. When you have an opening, you can move them to full-time status. They’re fully trained, and they just move right on in and work. “All my new hires came that route in my last job,” Dahlen says.
• Have a no-moonlighting policy. Dahlen noted that she has nurses who are out on FMLA and working as agency nurses for other organizations. There’s nothing she can do now, as her new company has no policy, but she’s working on that. She recommends putting no moonlighting into your short-term disability policy and sick leave policies as well. As much as you can, she says, you want to eliminate the possibility of double dipping and allowing people to work the system to where they don’t want to come back to work.
• Use credible surveillance when necessary. If you have good reason to think that an employee is falsifying an injury, it’s time for surveillance … but it needs to be credible. “You don’t go sit in front of their house,” Dahlen says. “You hire a surveillance company, an independent third party. You don’t want anyone who is working for you involved.”
• Require a functional capacity exam. You may require a return-to-work exam, but under the new regulations, you have to request it up front when employees go out on leave.

Vague Certifications Continue

One of the current challenges Dahlen faces in her new position is that all intermittent leaves were approved for 480 hours, and many are vague.
For example, one says “Not presently incapacitated, needs to transport patient to cardiology appointments 2 to 3 times a year.” “That leaves me open to the person calling in any time they want, and there’s nothing I can do about it because of the way the approval is written,” Dahlen says.

It should have been written: “Approved to take the person to appointments 2 to 3 times with prior notification of those appointments.”

Another certification reads “Unable to determine due to episodic nature of condition.” This is not acceptable, Dahlen says. “If the caregiver has been treating the patient, he or she should be able to tell you how many episodes per month and how many hours for each episode. Send these vague forms back and ask for additional information,” she explains.

As her annual certifications have come up for renewal, Dahlen is ratcheting the approvals back. One went from 480 hours to office visits every 3 to 4 months. Another went from 4 weeks’ leave to 4 days’ leave.

Put It in Writing

Finally, “every conversation you have with an employee, put it in writing,” Dahlen says. “This is what we talked about, this is what you have to do, this is what happens if you don’t do it.”