Best Practices for Preventing FMLA Abuse: Using the

FMLA to your Advantage

You are placed on notice of an employee’s need for

FMLA leave.

What is the first thing you do?

Don’t give leave prematurely• Before designating leave as FMLA, confirm the

employee is eligible for the leave.– Note: If employer represents leave as FMLA

qualifying and employee acts on representation, employer might need to honor reinstatement requirements, even if employee is not otherwise eligible for leave.

• All public employers are “covered” under the FMLA, but not all need to provide FMLA leave (50+ employee/75 mile requirements)– If you fall in this category, review your policy to

ensure you are not unnecessarily providing rights to which employees are not entitled.

Who is eligible for leave?1. Employees must have at least 12 months of

employment, 1250 hours in the previous 12months.

2. Has employee already used FMLA in therelevant period (calendar year, rolling, etc.)?

Reminder: Continuous leave entitlement is 12workweeks & includes holidays.

3. Does the employee present with a qualifyingreason?

Rule of Thumb: Leave must usuallyinvolve treatment from a health careprovider.

Enforce Notice Requirements• Employees are required to give at least 30

days’ notice when the need for leave is foreseeable, or at least as soon as is practicable. – If employees fail to provide appropriate and

timely notice, FMLA coverage may be delayed for 30 days from date of notice absent a reasonable excuse.

– Of course, employers will need to act depending on the particular facts and circumstances involved in the situation. If an employee could not provide notice, that would need to be taken into consideration.

Enforce Your Procedures1. Employers may enforce company call-in

procedures when an employee takes FMLA leave—even when the leave is not foreseeable.

2. Employees are to comply with the company’s usual and customary notice and procedural requirements for requesting leave unless there are extenuating circumstances.

3. If employees do not follow the company policies/procedures, FMLA coverage for the absence may be delayed or denied. Again, any unusual circumstances would need to be considered.

Require Certification• Requiring certification from the health care providing will ensure that

the need for leave is medically necessary.

• Employees have 15 days to return to return FMLA paperwork, absentextenuating circumstances

• Highlight the area of a medical certification where it indicates that“terms such as ‘lifetime,’ ‘unknown,’ or ‘indeterminate’ may not besufficient to determine FMLA coverage,” to help ensure that thehealth care provider sees it.

• Attach a job description so that the provider has knowledge of theemployee’s job duties.– FMLA leave is available when employee is unable to perform any

essential job function due to a serious health condition

• At the time certification is requested, advise of the consequences forfailure to provide adequate certification, which is leave will be denied.

Review Certification Carefully

1. If you ask for certification, make sure you review it, and do so carefully.

2. Employers are entitled to know why the employee will be absent, when and for how long, and the employee can (and should) be held to provide this information.

3. Make sure the certification includes a minimum duration of the condition, which will dictate

how long to wait to before requesting recertification, if needed.

Ensure Certification Is Complete and Sufficient

1. Make sure all the fields on a certification are completed.If they are not, require the employee to return thecertification completed.

Note: Leave can be denied until the a “complete”and “sufficient” certification form is provided.

A certification is insufficient if it is “vague,ambiguous, or non-responsive”

2. An employee has seven calendar days to return an incomplete or insufficient certification.

Second Opinion? 1. Request a second opinion if a certification’s

validity is doubtful

2. Employers may choose the health care provider for the second opinion (but it cannot be a “friend” of the employer (i.e., regularly contracted by the employer) ).

3. Employers are to pay for the second opinion.

4. Leave is provisionally provided pending the second opinion, but you can retract the designation and require paid or unpaid leave depending on your policy if opinion does not entitle establishment to FMLA leave.

Do Not Delay Designation of FMLA Leave

Employers can retroactively designate FMLA leave with appropriate notice of leave designation, but only if it doesn’t prejudice the employee.

Note: If the employer’s failure to timely designate leave causes the employee to suffer harm, it may constituted interference with the employee’s FMLA rights.

Require Recertification When You Can

• Every 30 days, or when the minimum duration of condition expires.

• Less than 30 days if:– Employee requests extension of leave– Circumstances have changed

• Using more leave than expected• Abusive leave pattern (Mon/Fri)

– Is the pattern consistent with condition?

– You receive information that casts doubt on stated reason for the absence (e.g., playing softball with a “supposed” knee injury)

Require Fitness-for-Duty Certification

• Notify the employee of the requirement at the beginning of the leave, ideally, in the designation notice.

• If the health care provider is to make the exam with a focus on the employee’s particular job duties, a list of the essential job functions needs to be included with the designation notice.

• If an employee does not provide a fitness-for-duty certification, job restoration may be delayed until one is received. If the employee does not provide such a certification, the employee no longer has a right to reinstatement.

Require Status Reports

Employees may be required to reportperiodically on their status and intent toreturn to work.

Note: There is no clear definition of“periodically,” so caution issuggested. If the leave is long-term, 30-days is good rule ofthumb.

Document All Absences

All absences, including vacations andvacation requests, should bedocumented. That way, such requestscan be compared with requests for FMLAleave to help detect the possibility ofabuse (e.g., employee was deniedvacation of leave and then submits FMLArequest for same time period).

Talk to Employee if Abuse is Suspected

If an employee is suspected of FMLA abuse, he orshe should be confronted with what facts andconcerns are available. If the employee is“acting,” the employee may be less susceptibleto continued abuse

Avoid acting solely on hearsay; if there is reasonto suspect problems, investigate further toidentify a factual basis for your suspicion. Allowthe employee to explain before taking action.

Surveillance?

While it might be warranted it you have reliable information that FMLA is being abused, proceed cautiously lest you place yourself at risk of a FMLA interference or retaliation claim.

Practice Pointer: Consider requesting updated certification instead if you have reliableinformation abuse is suspected.

An employee who fraudulently obtains FMLA leave is not protected by the FMLA’s job restoration or maintenance of health benefits provisions.

Outside Employment Policies

• Uniformly-applied policy governing outside or supplemental employment may continue to apply while employee is on FMLA leave.

• Thus, if policy prohibits “moonlighting” while on leave (any leave), this can be enforced while employee is on FMLA leave.

• If no policy, but you learn employee is working another job that is inconsistent with need for leave, may be able to show FMLA abuse.

Use a Rolling Calendar Period for calculating FMLA leave

This avoids potential abuse of employee’sdoubling amount of FMLA leave.

– If FMLA is calculated on calendar yearbasis, employee could go out in Octoberand job could effectively be protected sixmonths.

– This provides no incentive for employeeto return to work if they get another 12weeks at the start of the year.

Require Use of All Paid Leave Before FMLA

• Nothing in the FMLA prohibits an employer from requiring the use of all accrued, paid leave before leave is designated as unpaid under the FMLA (in effect, it offers a longer period of protected leave).

• Often, employees do not want to deplete their leave banks, so there is less incentive to abuse FMLA leave.

Demand Treatment Around Work Schedule

• The FMLA allows employers to ask employees to schedule medical treatment (e.g., physical therapy) before or after work (or at the start or end of the day), so that the employee can work as much of the shift as possible.

Re-Assignment to Alternative/Less Disruptive

PositionsEmployers can reassign employees needing intermittent or reduced schedules to an alternative available position (with equivalent pay and benefits) if employee is qualified and it better accommodates leave schedule.

Practice Pointer: No reassignment is permitted if it is intended to discourage leave or otherwise work a hardship on the employee (e.g., reassigning day shift employee to graveyard shift). Regular job is protected during intermittent/reduced schedule period.

Inability to Perform Essential Job Functions

Employees who are medically unableperform the essential functions of their job,but who are given an accommodation (e.g.,light-duty), can be placed on FMLA leave ifworkplace accommodations are no longeravailable (assuming employee qualifies forFMLA, which most will).

Coordinate with Employee’s Supervisor

If employee is entitled to intermittent leave, make sure person (supervisor) who is communicating with employee when leave is taken confirms the reason for the leave (i.e., the FMLA qualifying reason, or some other reason (cold)).

Make sure supervisor documents reasons provided by employees for each leave request that is not pre-approved, and apply leave accordingly.

Train Managers and Supervisors • Supervisors need know:

– the basics of the law, such as qualifying reasons for leave and the notice provisions.

– that medical information is to be treated as confidential.

– to contact HR when employee requests FMLA leave, or is out of work (or expected to be out of work) more than 3 days

Be Consistent

As with all employment practices, makesure you are consistent in your applicationand enforcement of procedures, and ifdifferential treatment is warranted,document the reason.

DOL Updates• New Forms – 2018

• FMLA Freezes “No-fault” Attendance Policies

• Voluntary Health/Wellness Events Unpaid

Questions?

• For questions about the HR Express Program, contact: Aileen HarrisTraining Manager(678)-686-6293

• For questions relating to this webinar, contact:Elarbee Thompson’s Public Sector Group(404) 659-6700www.PublicEmploymentLaw.com