6 Pointers To Curb FMLA Intermittent Leave Abuse

by Aaron Clark

Clark, Aaron

(402) 341-3070

One of the biggest headaches for employers is dealing with employees who abuse intermittent leave under the Family and Medical Leave Act (FMLA). It often starts with a medical certification indicating that an employee suffers from a serious health condition that can flare up at any time causing the employee to miss work. Such conditions may include depression, asthma, migraine headaches, sleep apnea and other medical conditions that are episodic in nature. When abuse occurs, it often disrupts business operations and causes supervisors to demand Human Resources to take action.

If the employee is eligible for FMLA, the employer must comply with the regulations when addressing issues of abuse. The regulations provide some tools to assist employers in this area. Here are some pointers:

  • Require a complete medical certification. To obtain intermittent leave, an employee must present a certification from their health care provider confirming that intermittent leave is medically necessary. The employee’s doctor must identify the specific reasons for leave, the duration and dates for treatment. If entries are missing, vague or ambiguous, you may ask the employee to provide more complete information. An employer may also contact the health care provider to obtain authentication and clarification. For example, the employer can confirm that the doctor actually prepared the certification or clarify the meaning of a response. However, a direct supervisor may not be the one who contacts the health care provider; this is typically handled by a Human Resources professional or leave administrator.
  • Ask for a second opinion. If the employer has reason to doubt the validity of the initial certification, a second opinion may be requested. The employer must pay for the second opinion and must not choose a doctor that is regularly used by the Company. If the first and second opinions differ, a third opinion may be obtained, again at the employer’s expense. This opinion will be binding.
  • Require the employee to follow your notice and call-in procedures. Under the FMLA, an employee is required to comply with the “employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” Therefore, the employee must follow the normal call-in procedure (e.g., calling in prior to the work shift) to report an absence. Although the absence itself cannot be counted under the employer’s attendance policy, attendance points can be assessed if the employee fails to comply with the Company’s call-in procedure or other notice requirements.
  • Require employee to use paid-time off or dock his or her pay for absences. There is no requirement for an employer to pay an employee during FMLA leave. The Company should have a policy requiring employees to use vacation or paid-time off when they are taking leave. Once these benefits are exhausted, the Company can dock an employee’s pay during intermittent leave. Under the regulations, an employer can lawfully deduct from an exempt employee’s compensation for intermittent absences under the FMLA.
  • Consider transfers and scheduling. If the intermittent leave is subject to a set schedule, an employer may transfer the employee to an available alternative position to better accommodate the schedule. The alternative position must have equivalent pay and benefits but does not need to have equivalent job duties. In addition, the employer can require employees to schedule their absences for planned medical treatment in a way that least disrupts the Company’s business operations. Thus, an employer has a right to inquire about the frequency and timing of doctor visits and work out a schedule that causes the least amount of disruption.
  • Request recertification. The regulations offer opportunities to seek recertification of an employee’s need for FMLA leave, including intermittent leave. Recertification can be requested if the circumstances under the original certification have changed significantly. For example, if the employee’s absences are excessive under the original certification. Recertification can also be requested if the employer possesses evidence that casts doubt on the stated reason for an absence. For example, the employee consistently takes intermittent leave on Fridays and Mondays to extend the weekend. The regulations allow the employer to provide information to the health care provider about the employee’s absence pattern and ask if such absences are consistent with the health condition. Before seeking recertification, it is always a good idea to talk to your lawyer as the rules in this area can be confusing.

While most employees use FMLA leave legitimately and do not abuse the system, it is certainly important to have a game plan to deal with violators. Adopting some of the above practices should help curb the abuse.

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