Best Practices for Controlling FMLA Misuse

Best Practices for Controlling FMLA Misuse

FMLA employer survey results released by U.S. Department of Labor in 2013: “The FMLA is working!”

· FMLA administration does not impose an undue burden on employers.

· FMLA leaves cause very little disruption in the workplace.

· Employers find it easy to comply with the FMLA.

· And . . . misuse of the FMLA by workers is rare.

Does this accurately reflect YOUR company’s FMLA experiences, especially with regard to intermittent leave?

So, What’s an Employer to Do?

FMLA misuse and abuse can be minimized through appropriate actions by the employer and the absence administrator.

1. Provide close oversight throughout the life of an FMLA claim, from first request/notice by employee through claim closure and/or return to work. The actions outlined here will provide that oversight and let employees know their leaves are being monitored appropriately.

2. Train supervisors. Supervisors have the best opportunity to observe or hear about leave issues. They should be issue spotters, not experts, but if they are trained they can identify a potential leave or abuse situation and report to Human Resources for proper handling.

3. Implement and enforce absence reporting procedures. FMLA allows employers to enforce reasonable absence reporting procedures that will apply to FMLA leaves. This includes the manner of reporting (e.g., written, call a certain number), content of the notice, and timing (as long as the requirement for advance notice does not exceed that permitted by the FMLA). This oversight requires employees to be responsive and follow the rules – not slide into loose practices and taking impulsive, unqualified time off. §825.302(d).

4. Provide employee’s job description to health care provider. An employee is entitled to FMLA leave if he or she is unable to perform one or more of the essential functions of the position. The job description will enable the provider to give a realistic assessment of the employee’s ability to work and/or need for leave. This may also help the employee identify on-the-job adjustments or modifications that will enable the employee to stay at work or return to work earlier. §825.123(b)

5. Review the initial Certification of Health Care Provider carefully and immediately – before approving the leave. An employer can take many actions if the initial certification is inadequate in certain ways, but these actions must be taken before an approval is issued. These include returning a certification because it is incomplete or insufficient, obtaining clarification or authentication from the HCP, and obtaining a second opinion from another provider. See next paragraphs.

6. Return the certification if it is not “complete” and “sufficient”. An employer is entitled to, and the employee has an obligation to provide, a complete and sufficient certification. A cert is incomplete if answers to any of the permissible questions on the form are not complete. A cert is insufficient if it is complete but the information provided is vague, ambiguous, or non-responsive. Without a complete and sufficient certification, it is not possible to manage the subject leave appropriately because key information is missing. The regulations require the employer to follow a specific process to address an in complete or insufficient certification. §825.305(c).

7. Obtain clarification, if needed. Clarification permits the employer to contact the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. §825.307(a).

8. Validate the authenticity of the certification, if needed. Authentication permits the employer to the provide the health care provider with a copy of the certification and request verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. This process is used if it appears the certification has been altered or fraudulently signed. §825.307(a).

9. Require a second opinion to validate the employee’s need for leave and the frequency and duration. If the employee’s own physician provides a certification that is of questionable validity (e.g., frequency or duration for the medical condition; opinion by a provider for a condition outside of his/her expertise) the employer has the opportunity to require a second opinion from an independent provider before the leave is approved. §825.307(b) and (c).

10. Limit the initial approval period to 6 months maximum, or the period set by the provider in the certification if shorter. This allows periodic checks on the employee’s condition and might result in reduced frequency or duration. At a minimum, it provides that close oversight important to good leave management and control.

11. Use recertifications liberally, as permitted. §825.308.

“30-day” rule should never apply.
At 6 months.
Upon employee request for extension of leave.
Upon change of circumstances.
Provide employee’s pattern or history of leave usage, or other information supporting need for recertification.

12. Require annual certifications if need for leave continues. Employers have the benefit annually of all opportunities to require a complete and sufficient certification, to clarify and authenticate, and to require a second opinion.

13. Require employee to schedule medical appointments to avoid disrupting business operations. This practice provides controls for the employee who always seems to have appointments on Friday afternoons, for example. §825.203.

14. Enforce deadlines set by FMLA regulations and employer policies. This requires employees to follow the rules and meet requirements for leave entitlements.

15. Investigate suspected abuse. Yes, you can and yes, you should! Let’s talk.