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Curbing FMLA intermittent leave abuse

The Family and Medical Leave Act remains among the more difficult laws for companies to administer.

Even with flawless and aggressive application of your company’s policy and procedures, some employees will still disrupt the workplace with sporadic and unpredictable absences. Employees are increasingly aware of their statutory rights, and are availing themselves of FMLA leaves in increasing numbers, including intermittent leaves.

Intermittent leave under the FMLA is taken in small blocks of time – often lasting only a few hours – up to 12 weeks in a 12 month-period due to a single qualifying reason.

Unfortunately, employers are reporting increasing abuse of intermittent leaves. Because the FMLA’s regulatory framework is so “employee-friendly,” employers may believe they have few options for curtailing such abuse.

Most susceptible to abuse is intermittent leave taken due to the employee’s or family member’s chronic serious health condition. For an absence to qualify under the FMLA, governing regulations do not require an employee to see a health care provider when a chronic serious health condition flares up, which makes it difficult for employers to confirm whether an employee’s absence was truly related to the chronic serious health condition.

Employers are anecdotally reporting that employees with chronic lateness or absenteeism issues have applied for FMLA for what is perceived by employers to be “protective FMLA applications.” That is, employees may be applying for FMLA to use intermittent leave as a shield from discipline.

For example, employees with lateness or absenteeism issues may apply for FMLA for a genuine chronic serious health condition, such as migraine headaches or diabetes, and then use the leave to cover non-qualifying late-arrivals or absences to avoid discipline. The problem for employers is that, once the employee is FMLA-certified, the employer has little control over the employee’s ability to take protected time away from work, and the employee may take leave without giving much notice.

The now-protected employee could report that late-arrivals or absences were related to “flare ups” of the serious health condition such as migraine headaches, when, in fact, the employee simply slept late or decided to take the day off from work. Since the regulations do not require an employee with a chronic serious health condition to receive treatment from a health care provider in connection with a particular absence, the employer has no way to verify whether the employee actually suffered a migraine headache.

Nonetheless, with intermittent leave for chronic health conditions, though – as with so many FMLA issues – employers have more options than they may realize.

Minimizing abuse

The best approach for employers to minimize intermittent leave abuse is to make certain that only truly qualified employees are approved in the first instance, and then aggressively manage the intermittent leave.

To minimize abuse of intermittent leave, start by ensuring your FMLA policies, procedures, and related forms are in strict compliance with the FMLA statute and regulations by conducting an audit. Many employers make the mistake of having a fairly relaxed FMLA approval process, because the medical standard for an employee to qualify for leave is rather low.

Your company, however, should be vigilant in developing a comprehensive FMLA policy and approval procedure. Doing so sends a message to employees the company takes the administration of FMLA leave seriously. Such action may deter abuse before it begins.

You should also ensure your company’s health care provider certification form includes a question regarding the anticipated frequency of intermittent leave. When you receive a health care provider certification form from an employee, your company’s human resources personnel should scrutinize the form.

If you have reason to doubt the validity of a health care provider certification, you may require the employee to obtain a second opinion at the company’s expense. A second opinion provides the company with an opportunity to have the employee examined by a health care provider of the company’s choosing (the health care provider, however, cannot be a provider with whom you regularly contract, such as a staff nurse).

Requiring a second opinion also sends a strong message that the company strictly complies with the FMLA, which may discourage employee abuse.

Your company should certify FMLA intermittent leave for the smallest amount of time possible, not to exceed 12 months, and require recertification upon expiration of the certification. Keeping an eye on the certification’s end date is instrumental in managing an employee’s intermittent leave.

Keep in mind that employees are FMLA-certified only for the serious health condition included in the certification and may not use FMLA leave for any other reason. For example, an employee who is FMLA-certified for migraine headaches may not take FMLA leave for diabetes, without having been first certified for intermittent leave based on diabetes.

Training HR

After you have audited, and perhaps revised, your FMLA policies and procedures, you should train your human resources personnel and supervisors on the correct application process and management of leaves, including management of intermittent leaves for chronic conditions.

Employees actively using intermittent leave for chronic serious health conditions may be required to recertify every 30 days in connection with an FMLA-related absence. For example, when an employee uses intermittent leave, the human resources professional should review the health care provider certification form.

If the employee was FMLA-certified more than 30 days ago, upon the employee’s return, your human resources professional should require the employee to obtain a recertification. Employees certified for intermittent leave must follow your sick day call-in policy, unless their serious health condition prevents compliance.

If your company’s sick-day policy requires employees to call in sick two hours before the start of the shift, then FMLA-certified employees must also call in two hours prior to the start of the shift. If the employee violates the policy, the employee should receive the same discipline that is meted out against non-FMLA-certified employees.

Develop a system to track leaves. If your company does not currently have a system to track time designated as FMLA, consider developing one.

Effectively managing FMLA intermittent leaves requires that the company have the ability to determine how much leave a particular employee has used and how much leave is remaining. While an employee is unlikely to exhaust the leave in many intermittent leave situations, tracking FMLA time lets the company spot trends, such as Monday and Friday “flare ups” of the chronic serious health condition, or absences exceeding the health care provider’s estimate regarding frequency of the need for leave.

Such patterns may cast doubt on the validity of the need for leave and can be the basis for a recertification or second opinion. Under certain situations, your company might even consider hiring a private investigator to trail an employee who is absent for an FMLA-related reason.

Many employers have hired private investigators to follow employees and learned that the employee who was allegedly suffering from a migraine headache spent the day shopping, renting videos, or attending a birthday party.

At the end of the FMLA year, reassess the employee’s eligibility. You may find that, in the second year, the employee does not meet the 1,250 hours-worked threshold.

An employer may reduce the pay of an exempt employee’s pay who takes FMLA intermittent leave. The FMLA regulations explicitly allow an employer to do so without destroying a salaried employee’s exempt status. Keep in mind, however, that an employee could avoid a loss of pay by choosing to substitute accrued paid leave, such as vacation, for unpaid FMLA leave.

Carrie Campion is a labor and employment attorney at Nixon Peabody LLP in Boston. Ms. Campion provides clients with legal and practical advice concerning all aspects of the employment relationship, including managing leaves of absence. For more information regarding leaves of absence or other employment related matters, contact her at ccampion@nixonpeabody.com or (617) 345-1045. Nixon Peabody is one of the largest law firms in the United States with more than 600 attorneys working in 15 major practice areas and in 15 offices across the country.

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