Maybe you already know the basics of the Family and Medical Leave Act (FMLA). But do you know how to leverage all the employer protections in the law so you're not taken advantage of?
If you're concerned about leave abuse, exercise the medical certification process, guaranteed under the FMLA. It gives you the right to obtain information from the employee’s physician about the medical condition and, at least for the first certification, to obtain a second or third opinion from an independent physician.
Dive further into the ins and outs of this complex law with our new webinar for HR pros and benefits administrators — FMLA in the Trenches: Advanced Tips & Tactics to Protect Your Company
Because of the strict limits on what an employer may ask an employee, follow these 10 steps to maintain an effective FMLA anti-fraud program:
1. Obtain a medical certification for each request for leave due to a serious health condition. It’s important that the employer’s sick leave or attendance policies require a doctor’s certification for all absences of three or more days for the leave to be excused. If there is no such requirement and the employer intends to require paid leave to run concurrent with FMLA leave, the employer might not be able to require a medical certification, which is the first step in the anti-fraud program.
2. Enforce a policy denying the leave request if an employee fails to submit certification within 15 days. In each instance, assess any appropriate penalties for failure to be at work.
3. Examine the certification closely to ensure that it has been properly and fully completed. Many doctors will complete the form in a hurried fashion. In some cases, they’ll intentionally leave some sections incomplete in order to remain “truthful” while accommodating the desires of the patient/employee for leave.
If you’re not satisfied with an employee’s certification, you may contact the employee’s health care provider directly to clarify or authenticate a certification form so long as you first give the employee seven days to clear up any deficiencies on the form.
Of course, if the medical certification does not support the existence of a serious health condition, the leave request should be denied.
4. Require a second opinion if the circumstances are even slightly suspicious and it is an original certification.
5. Once the certification is approved, make a limited inquiry each time the employee requests more leave, particularly in the case of intermittent leave. The goal is to determine whether the leave is for the same qualifying reason.
Rather than a review of the law’s basics, FMLA in the Trenches dives right into the complex (and legally dangerous) FMLA issues you face each day.
Employment lawyer Matthew Effland will take you through real-world scenarios and explain FMLA compliance issues using situations that you face daily. Plus, you'll have the opportunity to pose your own FMLA questions to Matt at the end of the session. Register for FMLA in the Trenches now!
6. Watch the schedule of absences closely in cases of intermittent leave to determine whether a suspicious pattern develops (e.g., immediately before and after weekends or days off) or whether there is a change in the frequency or timing. Such actions could suggest a change in condition that enables the employer to request a recertification. Require that employees who take intermittent leave follow your normal call-in procedures for reporting an absence, unless there are unusual circumstances.
7. Request recertifications as often as the law allows. The frequency of recertification permitted will differ depending on the type of leave and the type of serious health condition.
8. Require accrued leave to run concurrently with FMLA leave when allowed by law. When an employee realizes that taking leave today will affect future vacation time, he or she is more likely to take FMLA only when the need is legitimate.
9. Ask the physician to verify that the medical certification is exactly as he or she signed it and has not been altered.
10. Inquire about the intended method of transportation if an employee requests to leave work early because of his or her own serious health condition. If the employee cannot work, perhaps an ambulance is needed.
Following these steps will help eliminate fraud by employees who are inclined to “work” the system. Because of the limitations placed on the employer, however, determined efforts are unlikely to be detected. Yet even if no fraud is uncovered, your efforts will still reap dividends.
Once employees become aware that you intend to use these tools to detect fraud, many of those otherwise inclined to take inappropriate advantage of the FMLA will wait until a legitimate need arises.
FMLA in the Trenches is designed for moderate-to-experienced HR professionals and benefits administrators who are responsible for reviewing and/or making determinations about FMLA leave requests.
Our promise: By the end of this webinar, you will feel much more comfortable applying the revised and expanded FMLA in your workplace.
Specifically, you’ll learn:
- How to manage the practical FMLA issues, not just the legal ones. You’ll learn not just what the FMLA says, but what it means.
- Important new FMLA court decisions. The FMLA is a moving target. Court decisions constantly reshape your compliance requirements.
- FMLA FAQs. What’s the difference between “medical” leave and “family” leave? Does workers’ comp leave count against FMLA leave? When is it legal to fire employees on FMLA leave? Does “a single 12-month period” differ from a year? Learn the answers to these and other frequently asked questions.
- And much more!
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- At-Will employment and our ability to fire
- Dump strict English-only policy; EEOC cracks down
- Beware defamation lawsuit after firing: Keep the reason confidential
- Denying reinstatement after family leave