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.
How come HR does look into the reason why the employee is abusing. The employee that is abusing FMLA does not want to be at work for a reason. If someone loves their job(Fully engaged) then they would not be abusing FMLA to stay out of work, but doing what they can to get back to work. Employees that usually abuse FMLA where probably “Bad” employees in the first place and should never have employed at the time they need FMLA. I know too many HR people that try to use FMLA leave as a reason to get rid of “Bad” employees. Find the REAL reason why the employee needs/ or wants the time off.
Of note, I see a trend in potential intermittent abusers- they have found a niche to take time off and not be dinged for it. I see a consistent number of hours worked in a bi-weekly pay period that is below the 80 scheduled that seems to be the FML person’s minimum pay needed. It’s interesting, because as the pattern evolves, I find that the absences are just outside of the doctor’s orders for ‘flare-ups’ under ‘intermittent’ leave. Getting the interactive dialog in the proper perspective with each leave taker then has to be very carefully done. Once the employee realizes employer is catching on, absences quickly fall in line with what the dr cert said in the first place. By the way, when the person is at work, the work performance is average to above average.
Daneil-
How funny. Now HR is supposed to analyze the reason an employee doesn’t want to come to work- sheese! Many people don’t love their jobs, but they darn sure better love what a job does for them- help pay for their home, feed their kids, and supply for at least the most basic needs. If an employee feels the need to abuse the system because they are not ‘loving’ their job, maybe they should do the adult thing and look for a new one. Abusers of FMLA know how to scam the system (hunting season? fishing season? holiday season?), and if those things are more important, then they should find a way to make a living from it.
Overall, I find Daniel’s feedback to be spot on. When you study patterns of FMLA abuse, you will often find that certain supervisors have an inordinate share. FMLA abuse is only one result of their weak supervisory skills. These supervisors are also likely to have higher levels of turnover, production/productivity issues, supervisory actions or appeals. So, even if the FMLA abusers don’t warrent addressing the leadership/supervisory concerns, the turnover, productivity and appeals should. The handful of folks who abuse FMLA for hunting and the holidays are the ones Daniel refers to that we probably shouldn’t have hired in the first place. And we should all remember that we have a lot of good employees. Don’t let this handful drag you down.