Cutting Down On Abuse Of Intermittent FMLA Leave

No one was surprised that unscheduled intermittent leave was the hottest topic among the 15,000+ public comments the Department of Labor (DOL) received on the Family and Medical Leave Act (FMLA) regulations. While the DOL warned in its comprehensive review of the comments last year that employers could be mischaracterizing legitimate use of intermittent leave as abuse or misuse, there’s no denying that there are employees who are actually abusing it. The FMLA and its implementing regulations provide various ways to help curb abuse of intermittent leave.

Get second and third opinions. Exercise your right to ask the employee to go for a second, and even a third, opinion (at your expense). This helps cut down on abuse perpetuated by doctors who are willing to fill out FMLA forms according to their patients’ wishes or who are related to or are acquainted with the employee and are not objective in their evaluation of the medical condition.

Have employees recertify their condition. The law allows you to ask for recertification of the condition every 30 days — at the employee’s expense. You may ask the employee to recertify sooner if you suspect abuse, such as a pattern of absences around weekends and holidays. The expense could serve as a deterrent to some abusers.

Provide the doctor with attendance information. Along with the certification form, give the doctor the employee’s attendance record. Knowing that both the company and the doctor are aware of the pattern of abuse may prompt the employee to shape up.

Consider the effect of taking FMLA on employees’ wallets. The law only calls for unpaid FMLA leave. The benefit of having this policy is that employees may be loath to take unpaid time off. The drawback: You may wind up with employees who are absent even longer, as they will then have 12 weeks of unpaid FMLA leave on top of their accrued, paid leave.

However, if you require employees to substitute their accrued, paid leave for unpaid FMLA leave, they may think twice about burning their vacation days now and leaving none for later.

Enforce general attendance rules. The FMLA allows employers to enforce general attendance policies on FMLA-covered employees, as long as the policies do not interfere with employees’ FMLA rights and the policies are consistently enforced. Therefore, you can require employees on intermittent leave to notify their supervisors of an absence by calling in within an hour of the start of their shift, for example (barring a medical emergency or other circumstance that would make this impossible).

Hire a private investigator. It may be worth your company’s while to obtain solid evidence that an employee is engaging in fraud. It would be difficult for the employee to claim that you fired him/her in retaliation for using FMLA leave.

Intermittent leave is just one of the many FMLA administration headaches employers are facing today.