An employer’s guide to curbing intermittent FMLA leave abuse
Scott Cruz
By SCOTT CRUZ
One of the most frustrating issues for employers is an employee’s unpredictable intermittent absences taken under the Family Medical Leave Act (“FMLA”), which also raises concerns about employee abuse of intermittent leave. Intermittent FMLA leave allows employees to take time off in separate blocks due to a single qualifying reason, rather than a continuous 12-week period. This can be for their own serious health condition, or a family member’s serious health condition. The FMLA offers a number of tools – many of which are not widely known unless recommended by experienced employment counsel – that you can use to discourage abuse of intermittent leave. Below are recommended best strategies for curbing FMLA intermittent leave abuse.
To be eligible for intermittent FMLA leave, the employee is required to provide a certification from their physician substantiating that there is a medical need for intermittent leave. When the certification has missing entries or is ambiguous, for example, as it relates to the physician’s estimate of how often (frequency) and how long (duration) the episodes of incapacity will likely last such that intermittent leave is needed, you may require the employee to provide such additional information and/or even seek clarification directly from the employee’s physician. Note, however, the FMLA regulations instruct that the employee’s direct supervisor may not be the one who contacts the physician; rather it must be a human resource professional, leave administrator or management official. Employers may also contact the physician to ensure that the physician actually prepared the certification, and to clarify handwriting or the meaning of a response. During this process, be careful not to request more information than what is required to authenticate or clarify the form.
If you have a legitimate basis to doubt the validity of an initial certification, you can ask for a second opinion. While you can choose the physician who will provide the second opinion, it cannot be a physician whom the employer uses on a regular basis for employee examinations, and the employer must pay for the second opinion. If the first and second opinions conflict, you may require the employee to see a third health care provider, also at your expense. The third provider’s opinion is binding.
Employers also should ensure that all absences related to the condition for which intermittent FMLA was approved are counted against the employee’s FMLA entitlement. Identifying FMLA absences is not simple, mainly because the employee does not have to even state the words “FMLA” in a request. If there is an existing certification, it is enough for the employee to notify the employer that he had a recurrence of the health condition covered by the certification. Thus, supervisors should be trained to notify human resources any time an employee is out for an extended period (i.e. more than 3 days) with an illness, particularly if the employee sought treatment from a physician during that time.
Adopt a policy that requires accrued paid leave to run concurrently with unpaid FMLA leave, including intermittent. Employees are less likely to abuse intermittent FMLA leave if they are required to use up their vacation/sick/PTO time each time they take leave.
The FMLA prohibits employers from requiring that the employee provide a doctor’s note following any one FMLA related absence, if there is a valid medical certification already in place. But, if your policies require employees to sign a certification upon return from any and all approved medical absences (FMLA otherwise), attesting that the specific absence was for the specific reason approved, you generally can require the employee to sign such a certification after each intermittent leave. The benefit of doing so is fairly straightforward: In the event that the employee takes leave inconsistent with the specific reason approved, you can discipline the employee for falsification of employment records.
Require employees to provide recertification when appropriate and necessary. For example, an employer may request recertification if the circumstances described by the previous certification have changed significantly, or the employer receives information that casts doubt upon the employee’s stated reason for the absence. “Changed circumstances” include a different frequency or duration of intermittent absences than what was initially approved. “Information that casts doubt on the employee’s stated reason for the absence” may be information you receive (possibly from other employees) about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition.
Employees may take intermittent leave for among other reasons, treatment, therapy, and doctor visits. Employees must schedule those absences for planned medical treatment in a way that least disrupts your operations. So, when you receive a request for this type of intermittent leave, communicate with employees about the frequency of the treatment, the office hours of the health care provider and ways that the employee may be able to alter the schedule to cut down on disruptions.
If an employee’s continued intermittent absences interfere with your operations, the employer may require the employee to transfer temporarily, for the duration of the approved intermittent leave, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. However, the transfer may not result in a loss of pay or benefits or be used to discourage employees from taking leave. And, when the employee no longer needs to continue on intermittent leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he or she left when the leave commenced.
These tips won’t entirely eliminate the problem of employees trying to take advantage of using the intermittent FMLA leave – probably nothing can do that – but they will help.
Scott Cruz is a partner in the Labor & Employment Practice Group of UB Greensfelder LLP’s Chicago, O’Fallon, Ill. and St. Louis, Mo. offices. Cruz can be reached at (312) 658-6608 or [email protected].
Excellent information and analysis. Thank you
I can’t believe this article was even written. While I’m sure some people attempt to take advantage of FMLA (one bad apple spoils the bunch), my experience has been that people take FMLA because they NEED to. It isn’t paid leave – typically one is required to use sick days, vacation days, or PTO – and most people don’t WANT to take it. So the fact that you just spent time writing an article on how employers can curb intermittent FMLA “abuse” by employees, makes my stomach absolutely roil. Essentially, this article reads as a “how to” manual for burdening individuals already in distress, by making them jump through extra hoops. And to suggest forcing someone to get a second opinion evaluation if you don’t “believe” the first one, then a THIRD evaluation if the first two don’t match, and having the THIRD opinion as the final decision-maker – how dare you? Often, people have been working with their doctors for years. And for a company to bring in doctors the employee doesn’t know and won’t necessarily trust, to make a diagnosis after one visit, or say several (none of which the ill individual has time, nor often stamina for) is completely unbelievable. This is worse than insurance companies preventing doctors from practicing medicine based on their YEARS of training, rather forcing them to follow the insurance company’s guidelines for proper treatment protocol, threatening denial of coverage if not done their way, making me often wonder how many people have died due to insurance company policies delaying treatment a trained medical doctor has tried to provide. You are teaching employers not to show empathy for their employees, many of whom have been working for companies for years, instead suggesting employers add more stress to those already at the point of burnout. This is appalling. You suggest, in the midst of the article, the possibility of requiring recertification if information that casts doubt on an employee’s reason for absence should come up. “’Information that casts doubt on the employee’s stated reason for the absence’ may be information you receive (possibly from other employees) about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition.” HEARSAY? You are suggesting using hearsay to determine whether an employee is being truthful about the reason for an absence? In a court of law, that would usually be considered inadmissible because it is UNRELIABLE. Do you think all employees get along? People spew venom at each other and could easily tell an employer something about someone they dislike just to try to discredit the person in the eyes of management.
Finally, you focus on individual intermittent FMLA, but often employees take that to care for loved ones – parent, spouse, child – who are battling awful, sometimes terminal illnesses, or are diagnosed late in life with a late stage cancer. So not only might your employee be experiencing anticipatory grief, trying to keep that hidden from their loved one, managing a family/obligations, he/she is also still trying to work, which is loyalty and should be valued, not belittled. When the doctor fills out paperwork for a daughter POA whose father was in perfect health until receiving a diagnosis of a type of blood cancer, with the treatment plan consisting of a chemotherapy pill, and the goal being to keep the cancer from turning into Leukemia (a death sentence at that point), the doctor might not be able to pinpoint the frequency of appointments or procedures (i.e. maybe the doctor can give a day of the week for required blood testing, to which your employee needs to take her father, but not whether he will need a transfusion, nor if it will have to be that day or can wait until a Monday). Nor can the doctor magically know if your employee’s father will need hospitalization, and if so, for how long. But adding pressure to your employee in a time like that is reprehensible. In the future, I hope you think as a human being, not an employer whose focus is solely on money and the flow of the company, because I guarantee that if you were the one taking intermittent FMLA, you absolutely wouldn’t appreciate the stress your employer would add to your life by following what you suggested.