Attendance abuse and the FMLA

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in FMLA Guidelines,Human Resources

Q. Our company has certain employees who we believe abuse our absentee policy. We use a “no fault” system, but we do excuse FMLA absences. Typically, when employees get close to discipline or termination, they begin the paperwork for an FMLA absence. Do you have any suggestions on how we could better police the FMLA process to limit abuse?

A. Many employers experience the same frustration, and there is no surefire solution to your problem. There are a few practical steps that you might consider.

First, review the FMLA requirements, and make sure you are demanding full compliance from employees. For example, make sure the employee’s personal physician provides all the required information in the certification.

Second, the FMLA contains what are commonly referred to as “anti-abuse” provisions. If you have reason to doubt an employee’s medical certification supporting an FMLA leave, you may demand the employee get a second opinion. The second opinion must not be from a health care provider who is regularly employed by the company. If there is a difference of opinion between the treating physician and the second opinion, there is a procedure for a third and binding opinion.

Third, as an employer, you are within your rights to request “recertifications” on a “reasonable basis.”

Some employers go a step further and require an employee on sick leave to either stay at home or report to the company when he leaves and returns to his home. This rule would apply only during the employee’s normal working hours. The employer follows up with phone calls and visits during working hours. If the employee violates the reporting requirements, he is disciplined accordingly. You will want to consult with your legal counsel about adopting such a policy, and if you have a union, you probably have to negotiate the terms.

Finally, some employers that are suspicious of employees on medical leave will hire private investigators to determine whether the employee is working or engaging in physical activity inconsistent with the medical or FMLA leave.

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