A significant challenge in managing leaves of absence under the Family and Medical Leave Act (FMLA) is controlling employee abuse or misuse of leave rights. To be clear, eligible employees are entitled to receive the time off and job protections afforded by the FMLA without interference or retaliation by their employer. However, when potentially suspicious or fraudulent circumstances surrounding an FMLA request arise, employers often don’t know how to approach the issue. Suspected FMLA abuse can be particularly challenging when dealing with intermittent leaves.
Certain employment practices may help discourage employees from misusing FMLA leave, especially intermittent leave. Here are our leading practice recommendations for helping to curb FMLA leave abuse.
- Track and Monitor Leaves Closely. Employers need to track and oversee the use of FMLA in a compliant and diligent manner. When employees know their leave requests will be appropriately monitored and tracked, they become less likely to request or use FMLA inappropriately. In addition, effective monitoring helps alert employers to patterns of FMLA use, or use outside of certified parameters, in a timely fashion so that it may be addressed. Be careful, however, that monitoring does not lead to harassing employees over their use of FMLA leave, which could lead to an interference claim.
- Use Medical Certifications Appropriately. When an employee requests FMLA leave for his or her own serious health condition or to care for a family member with a serious health condition, specify that the employee must provide a complete and sufficient medical certification form. The health care provider completing the form should specify the following, as provided by the FMLA regulations:
- The approximate date on which the serious health condition commenced and its probable duration;
- A description of medical facts sufficient to support that the individual has a condition that meets the definition of serious health condition under the FMLA, unless precluded by state law;
- If for the employee’s own serious health condition, sufficient information to show that the employee cannot perform the essential functions of the employee’s job as well as any work restrictions and the likely duration of that inability/restriction;
- If the patient is the employee’s family member, sufficient information to establish that the family member needs care (as defined under the FMLA) and an estimate of the frequency and duration of leave needed to care for the family member;
- If intermittent or reduced schedule leave is requested, the provider should specify the medical necessity of such intermittent or reduced schedule leave and an estimate of the dates/frequency and duration of episodes of incapacity, treatments and periods of recovery.
- The information provided on the medical certification will be the employer’s roadmap for administering the leave and determining what periods of leave are supported. Leave usage may then be compared with the certification to determine if the leave is within the certified parameters or if additional steps may be warranted.
- Obtain Second and Third Opinions, When Appropriate. Employers often have reasons to question if a medical certification is valid. Perhaps the certification is for a heart condition but is signed by a podiatrist. Or perhaps multiple employees are providing certifications with the exact same condition from one particular doctor in town. When an employer has reason to doubt the validity of a medical certification, it may consider getting a second opinion before the leave is approved. (A third opinion may be sought if the two prior opinions differ.) Second (and third) opinions must be paid by the employer. But when obtaining a second opinion, the employer may choose the health care provider (as long as not employed by the employer on a regular basis). Be careful, however, not to require second and third opinions merely because you don’t like the information on the initial certification form. There must be a reason for doubting the validity of the first certification in order to send the employee for second and third opinions.
- Seek Recertification, if Circumstances Changed Significantly or the Stated Reason Is in Doubt. Employers generally may request recertification no more than every 30 days and only in connection with an absence by the employee. However, recertifications may be sought more often than every 30 days in certain circumstances:
- The employee requests an extension of leave;
- The circumstances described by the previous certification have changed significantly (e.g., duration or frequency of absences, severity of illness, etc.); or
- The employer has information to doubt that the employee’s stated reason for absence is covered by the FMLA.
- A recertification is particularly useful when an employee uses intermittent leave more often or in longer segments of time than was originally certified. It also can help employers question why, for example, an employee who is out on FMLA leave recuperating from knee surgery is playing basketball at the local YMCA. The timing, content, and other details of the recertification process must follow the applicable FMLA regulations, so proceed cautiously.
- Follow and Enforce Company Absence Reporting Policies. Employers may require that employees follow established policies and procedures for calling in sick, reporting absences, or otherwise requesting time off, unless unusual circumstances prohibit compliance with those policies. This means that if an employer’s call-in policy requires that employees contact their supervisor within 30 minutes of the start of their shift, employees must follow that procedure even when they will be absent due to an FMLA-covered reason. If an employee fails to follow that procedure, employers generally may enforce that policy as they would for other employees on non-FMLA absences with any resulting discipline attributed to the employee’s failure to comply with company policy, not for using FMLA. Use common sense, however, meaning that if the employee is hospitalized or other unusual circumstances prevent the employee from complying with the company policy, do not count that against the employee.
- Investigate Suspected Abuse. At times, employers receive information that suggests that the employee may be taking FMLA leave when engaged in activities that are not consistent with the leave. For example, an employee may be seen interviewing for another job while he is supposed to be at a doctor’s appointment. Or, perhaps the employee posts pictures of her skiing vacation while out on FMLA leave for a bad hip. Another scenario is when an employee provides a fraudulent medical certification form. Employers may use some of the tips listed above, such as seeking a recertification, to help investigate the suspected abuse. But don’t forget to talk to the employee as well. When questioned, the employee may admit to some misuse, or may deny that they were skiing or in a job interview. In that case, dishonesty or fraudulent use can lead to discipline, but be sure to consider the strength of your evidence before taking action. Finally, hiring a private investigator to conduct surveillance of an employee suspected of abusing FMLA leave can be a viable option, if used cautiously. Remember that many activities, such as child care, grocery shopping, travel, etc., may not always be inconsistent with FMLA leave so consider the facts of each scenario carefully.
Conclusion. Abuse or misuse of FMLA leave is a practical challenge for many employers but using these tips can help manage FMLA leaves in a compliant yet abuse-curbing manner.