W. Jonathan Martin II, Partner, Constangy, Brooks and Smith, LLP

Employees are becoming more sophisticated in manipulating the Family and Medical Leave Act (FMLA), particularly by using intermittent leave when vacation and sick leave are not available.  To minimize disruption in the workplace, employers must detect abuse. While managers understandably are apprehensive when questioning an employee’s request, they should not be afraid of holding employees accountable for their actions!

FMLA rules and regulations provide employers with rights that help limit potential FMLA abuse.  These helpful hints should assist in avoiding FMLA abuse:  

1.    Calculate FMLA Leave Using A “Rolling” 12 Month Period.  

Measuring FMLA using this method (looking back one year and determining how much FMLA leave an employee has already used) avoids the potential abuse of employees “doubling” FMLA, which can happen if FMLA is measured on a calendar year!

2.    Require That Employees Use All Paid Leave Prior to Taking Unpaid FMLA.

Employees are less likely to abuse FMLA if they must exhaust vacation and sick days before using unpaid FMLA.  Similarly, employees on leave for workers compensation injuries may be required to concurrently exhaust available FMLA.

3.    Require Medical Certifications.

Unless it is not practicable to do so, FMLA medical certifications must be returned within 15 days. An employer who explains in writing the penalties for not returning certifications in a timely manner may take action – including delaying the leave – when employees fail to follow the rules.   Additionally, employers may obtain clarification and authentication of medical certifications when necessary.  Employers may contact an employee’s treating physician directly for this purpose, after giving the employee written notice of the deficiency of the certification and an opportunity to cure such deficiency within seven (7) days.   Employers may also require employees to submit a recertification every thirty (30) days for leave taken because of the employee’s own serious health condition or the serious health condition of a family member.  In some cases, an employer may even require re-certifications more frequently.   

4.    Require Employees Provide Thirty Days Notice for Foreseeable FMLA.  

Requiring advance notice gives you the luxury of planning around absences, thereby increasing  productivity and minimizing abuse.   

5.    Demand That Employees Schedule Medical Treatments Around Work Schedules.  

Regulations allow you to ask employees to schedule medical treatment before or after work so the employee can work as much of his/her shift as possible.

6.    Establish And Enforce Reasonable Attendance And Call-In Rules For All Leave.  

The law allows employers to enforce established no-call, no-show policies even for employees on FMLA leave.  Additionally, employers may require employees to call in at regular intervals, including every time they leave home.  Furthermore, employers may enforce attendance rules stating that employees will be terminated for missing a certain number of days from work without an excuse, and rules requiring employees to call in by a certain time prior to the beginning of a scheduled shift.  The key to avoiding abuse is consistent enforcement of leave policies.
 

7.    Assign Employees Taking Intermittent Leave To Alternative Positions That Cause Less Disruption.  

If an employee’s continued intermittent absences interfere with operations, the employee may be transferred or reassigned to an alternate position until the FMLA leave is concluded.

8.    Require “Fitness For Duty” Certifications For Employees Returning To Work.

In situations involving leave related to an employee’s own serious health condition that made the employee unable to perform his/her job, employers may require fitness for duty determinations, at the employee’s expense, provided that the employer has notified the employee at the time of the leave designation that a fitness for duty certification would be required and provides the employee with a list of essential job functions that the employee must be able to perform in order to return to work.  However, a fitness for duty certification CANNOT be required for a return from every instance of intermittent FMLA leave.      

9.    Require Second and Third Opinions.  

Employers who question the validity of certifications may challenge them, at the employer’s expense, by requiring the employee to visit an objective health care provider for a second, or even third, opinion. 

10.    Establish a Policy Prohibiting Employees From Working Second Jobs While On Leave.

Without a uniform policy against holding a second job while on any type of leave (other than vacation), an employee on FMLA is protected from disciplinary action for working a second job while on FMLA leave. Avoid the potential for abuse with a policy on point.

The Family Medical Leave Act is one of the most employee-friendly statutes.  Provisions for intermittent leave are ripe for abuse.  Careful reading of the provisions provide management with tools to avoid such abuse.  Understanding these tools will preserve valuable resources.