Abuse tends to occur where intermittent FMLA leave is at issue. Intermittent FMLA is the single most difficult issue for human resource
professionals and for employees in general because, by its very nature, it is taken in small increments of time. This type of leave actually lends itself to abuse because a half hour here, or an hour there, can very easily be explained away through an employee’s excuse. This issue tends to create the most headaches for employers. There are a number of things that employers can do to combat or prevent FMLA abuse. It starts when the employee makes the initial phone call to report an absence. First, employers must recognize whether the employee is seeking leave that might be covered by FMLA. In other words, has the employee notified the employer of the possible need for FMLA leave? It’s one thing if an employee calls in sick or has a child with a common, short-term illness. In these situations, an employee’s absence is subject to usual attendance policies and action. However, employees are not required to specifically cite the FMLA as a reason for their absence; therefore, it is important for employers to know when employees are allowed to take FMLA leave and ask questions accordingly to determine their obligations when responding to an employee’s request for time off.
Employers can legally and legitimately ask employees a number of questions to determine whether the absence is an ordinary sick day or something more serious:
• What are the specific reasons for the absence?
• What job duties can the employee perform or not perform? If the employee is limited to performing certain duties, could certain duties be reassigned temporarily so that the employee can still come to work?
• Is the employee going to see a physician for his or her injury or illness?
• Has the employee suffered before from this condition? Has he or she previously taken leave for this condition and, if so, when? • When did the employee first learn of the need to be absent? If he or she is tardy in reporting the absence, why couldn’t he or she report it sooner?
• When does the employee expect to return to work?
These questions help the employer better understand the employee’s need for leave and determine whether FMLA is in play. Other methods to reduce FMLA abuse include the following:
• Enforce usual and customary call-in procedures. If, for instance, the employer’s personnel policies require that employees report an absence at least 1 hour before the employee’s shift, then the employer should enforce that rule (absent an unusual circumstance), requiring that employees complete a written request form for their absences. Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to write out his or her request tends to deter people from taking advantage of the system. It also helps the employer administer FMLA leave, ensuring that FMLA leave is supported by a medical certification form, which is perhaps the best tool to combat abuse. If this is a first-time medical condition, it is obviously important to have this documentation filled out up front. Employers also should utilize recertification to ensure that the employee has a serious medical condition that requires leave.