With the holiday season coming up, employers are faced with one of the biggest conundrums of managing the Family and Medical Leave Act (FMLA): employees abusing it for extra time off.
FMLA abuse can be extremely costly for an organization due many factors including, direct financial costs like hiring replacement workers, a decline in productivity, and a plummet in morale amongst your workforce as others have to cover for your absent employees.
In order to curb potential FMLA abuse, it’s crucial that you have clear and consistent guidelines about the entire leave process at your company, from the request through to return to work.
Here are a few tips to get started…
1. Know Your Rights When It Comes to Intermittent Leave
FMLA is often more easily abused when it is leave being taken intermittently, as this type of leave is notoriously difficult to track. That’s why it’s absolutely essential that you keep an eye on leaves being taken in this fashion, and monitor for potential abuse.
As an employer, you have certain rights when it comes to your employees taking leave intermittently…
First, an employee’s right to take FMLA intermittently is a contingent right, meaning that this may only be granted if deemed a ‘medical necessity’ by their healthcare provider, and the correct procedures have been followed. So before you approve an intermittent leave, ensure that these steps have been taken, and that the need has been proven by the healthcare provider.
Additionally, under the FMLA, employees are instructed to work with their employer to schedule intermittent leave in a way that is least disruptive to operations. Thus, it is a give-and-take relationship, allowing you to find a solution that works for both of you.
Finally, the Act also states that employees must follow employer policies on reporting absences, or else the employer has the right to not designate the absence as FMLA. A caveat to keep in mind is that employers cannot implement special reporting requirements just for FMLA absences - they must have the same requirements for other similar leaves.
Employers also have specific obligations to their employees before they are able to take adverse action against an employee using leave. Specifically, employers must publish and ensure employees are aware of the policies in place and the consequences that come from not adhering to them.
Ultimately, as an employer you must diligently and consistently administer leave to guarantee that all employees are treated fairly and equitably.
2. Conduct an Internal Audit on Your FMLA Processes
It’s also recommended that you conduct an internal audit of your FMLA processes. This might involve speaking with your frontline to see if they have any concerns about FMLA abuse or the leave process. If you manage leave in a decentralized manner, you should verify that everyone is using the right leave forms. You might also want to check that you’re meeting all of the employer notification requirements under the FMLA. These are just some examples of areas in which you may be falling short and should include in an audit.
3. Enforce Notice Requirements
There are deadlines for each piece of paperwork involved in FMLA review process. Oftentimes, employers try to be flexible with these deadlines, or even let them fall through the cracks due to other projects and deadlines. However, by enforcing these dates, you will be taking more control over the process. It also shows your employees that you're aware as to what is going on with leave-taking within your organization, and gives them less opportunity to abuse it!
For example, you can require the medical certification to be returned within 15 days. If you have this in writing, and explain the consequences for not doing so, you have the right to delay an employee’s leave if they break the rules.
You can also enforce the 30-day advance notice requirement for foreseeable leaves, again, assuming you have clearly communicated this to employees. This will allow you time to adequately plan and move around your resources for the duration of the employee’s leave.
4. Try to Identify Patterns
If you suspect that one of your employees is abusing their FMLA rights, the first step is to look for patterns. Observe if absences tend to be in certain departments, or if they relate to holidays, weekends or paydays. Track this over a long enough period of time to adequately demonstrate a pattern. If you do notice a common theme, talk to the employee first and give them a chance to explain themselves. Be careful not to jump to conclusions; think before you act!
5. When in Doubt, Talk to the Doc
When you have “good faith” evidence that the absence behavior is not consistent with the Certification of Health Care Provider (CHCP), talk to the employee to see if there are extenuating circumstances. If this discussion doesn’t reveal any unusual patterns, ask the employee to have their doctor recertify the condition. You can give your employee a letter to deliver to their doctor which questions if the pattern you have noticed is medically necessary. Oftentimes, the fact that management has noticed the pattern is enough of an alert for the employee to stop their habits.
6. Keep in Touch
One of the easiest, most overlooked ways to mitigate FMLA abuse is to call and check in with employees regularly throughout their leave. Abuse of the FMLA can be significantly reduced when the employee’s supervisor regularly checks in.
This shows your employee that you not only care about their health and well being, but also that you haven’t forgotten about their leave. When the employee is aware that the manager is attentive to this, they’re less likely to take their leave for granted.
Of course, don’t check in so frequently that you disturb the employee’s leave of absence and trigger an interference claim. Aim for monthly phone calls, and only then for leaves greater than 3 weeks.
7. Know When It's Time to Ask for Help
Ultimately, managing the FMLA and ensuring that none of your employees abuse it is a big undertaking. That’s why it’s essential to recognize when it’s time to ask for help when you need it!
Leave Genius, designed with small and medium-sized employers in mind, knows the FMLA, state and municipal leave laws! It is the ultimate resource to help you decipher the legality of each case! Don’t try to be a legal expert… that’s what Leave Genius is for!