Can You Put a Stop to FMLA Absence Abuses? Yes!

08/20/08

The Case
“So,” said Beth, the CEO, “he wanted to take half a day off for the fifth time in six weeks? And he just told you this morning?”

“Yes,” replied Sonja, a shop-floor supervisor. “He said he needed to see his doctor about his asthma. He said it was getting worse. Then he reminded me, as he always does, that he’s covered under the FMLA.”

Asked Beth, “What did you say then?”

“I told him to go ahead, and that this would be counted against his FMLA leave for the year. But if you go back and look at the days he takes off, you’ll see that they are always heavy production days that may result in overtime.”

“What are you suggesting?” asked Beth.

“I’ll tell you flat out,” said Sonja. “I think he’s using the FMLA to avoid hard work and overtime. He’s marginal on most days, and he can be pretty useless on the days we really have to pump out the product.”

“Have you counseled or disciplined him?”

“Yes,” said Sonja. “He’s received two warnings. One was for absenteeism. He had nine unscheduled absences last year—and they were all on heavy production days for us. He came up with this asthma thing early this year and hasn’t had an unscheduled absence since.”

Beth asked, “Did you receive documentation from his doctor?”

“Yes,” said Sonja. “But I never know who to trust. I think you can find a doctor who will say anything.”

“We can have a doctor of our own choosing see him, you know,” said Beth. “Have you done that?”

“No,” said Sonja. “Is that the next step?”

“It might be,” said Beth. “Let me consult with our attorney, and I’ll get back to you.”

The Analysis
This is such a familiar situation today, and it’s often an incredibly frustrating one for employers. Most employers want to do the right thing by employees and allow them the time off they need for legitimate medical problems. In situations like this one, however, the employer strongly suspects the employee is taking unfair advantage of his entitlement to FMLA leave and wants to put an end to the abuse.

The reality is that employees like the one in this scenario have seized on intermittent leave as an easy way to violate employers’ attendance policies with impunity. Employers in this situation often feel they have no rights. But there are some things employers can do to minimize abuses.

Ask for Advance Notice
First, remember that employees on intermittent leave are required to provide as much notice as possible of any planned medical treatment. If this individual made his doctor’s appointment several days or weeks ago, he should have given his employer advance notice of his need for time off.

Letting his employer know the morning of the appointment that he needs to leave work is not adequate notice. In fact, the employer would be within its legal rights to deny his request for a half-day off to see his doctor. The employee should be told in no uncertain terms that all planned medical treatment must be scheduled with the employer as far in advance as possible. If the employer has an FMLA policy, the policy should remind employees of this point as well.

Stop the Abuse
The more serious problem is that this employee is obviously abusing his right to leave. He is taking off sick on unusually busy days when it’s likely he will be required to work overtime. As his supervisor points out, this was also his absenteeism pattern the previous year—before his absences were designated FMLA-qualifying. Now, he’s up to his old tricks, but this time his absences are excused based on his claims that they are FMLA-related. It’s a bad situation for the employer, but there are some steps this employer can take.

The employer, for instance, can question the employee’s medical certification. But it must follow certain steps. The first thing an employer can do is—with the employee’s permission—have a health-care provider representing the employer contact the employee’s doctor. This can be done, however, only for purposes of clarification and confirming the authenticity of the certification.

If the employer doubts the validity of the certification, it may require the employee to obtain a second opinion from another health-care provider at the employer’s expense. The employer can choose the health-care provider, but it cannot use a health-care provider with whom the employer regularly contracts or uses. (There is one limited exception to this rule.)

If the first and second health-care providers differ, the employer can require the employee to obtain a third opinion, again at the employer’s expense. The third opinion is final and binding.

Require Recertification
Regardless of the outcome of the initial medical certification, employers are also entitled to require periodic recertification of the employee’s health condition to substantiate that he or she continues to need/ qualify for FMLA leave. The recertification can ordinarily be required no more often than every thirty days. But employers can request it more frequently under some circumstances—such as when the employer receives information that casts doubt on the continuing validity of the certification.

The good news for employers is that the periodic recertification is at the employee’s expense. Requiring regular and ongoing recertifications can help to curb abuses.

Consider a Different Job
Finally, remember that an employer may be able to transfer an employee on intermittent leave to an alternate position that better accommodates the recurring need for leave than the employee’s current position. The alternate position must have equivalent pay and benefits.

While the regulations state that a transfer cannot be a covert attempt on the employer’s part to discourage the employee from taking leave, it can nonetheless be a useful tool to curb abuses. Even if it doesn’t, if sporadic or unpredictable absenteeism in the alternative position has less adverse impact on the employer’s operations, it has benefit to the employer.