August 20, 2019

August 20, 2019

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August 19, 2019

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Intermittent Leave or Spring Break? Tips to Help Prevent FMLA Abuse

As spring turns into summer and the weather warms up, employers may notice an increase in employee absences. While spotty or unpredictable attendance can cause staffing issues and frustration for employers, certain absences, even irregular ones, may be protected under the Family and Medical Leave Act (“FMLA”). The FMLA entitles eligible employees to twelve workweeks of unpaid leave during any twelve-month period, either consecutively or on an intermittent basis, when medically necessary to care for a seriously ill family member, or because of the employee’s own serious health condition.

While intermittent leave is designed to serve the needs of employees who need to be absent from time to time to address legitimate health problems, occasionally, employees’ use of intermittent leave can create serious headaches for employers and raise concerns about FMLA abuse. Below are two common scenarios of possible FMLA abuse and strategies for employers to address these issues.

Scenario #1:  The Long Weekend Leave

Molly has provided certification from her doctor that she suffers from a chronic condition causing migraines. She is absent several days a month due to what she claims are painful migraines. You notice that Molly consistently takes her intermittent leave on Mondays or Fridays, when staffing is already a challenge. What should you do?

Tip #1: Train Supervisors

Paying attention to patterns is one of the most effective ways to identify FMLA abuse. Frequent use of FMLA leave around weekends or holidays could be a sign that an employee is not using intermittent leave for medically necessary purposes. The same may be true in other situations, such as when leave is taken after an undesirable task or shift is assigned. Employers should train supervisors on how to spot potential issues, and bring it to the attention of appropriate human resources personnel who are trained in managing FMLA leave and identifying potential abuse.

Tip #2: Recordkeeping

Accurate recordkeeping is particularly important for tracking intermittent FMLA leave. Employers can remind employees how much leave they have used and how much they have remaining. Employees may be less likely to abuse intermittent leave if they know their employer is diligently tracking how much leave they have used and when they took that leave.

Tip #3: Require Sufficient Notice

Employees are generally required to provide at least thirty days’ advance notice of planned leave. If the leave is not foreseeable, notice should be given “as soon as practicable.” For intermittent leave, the employee must make a reasonable effort to schedule treatment so as to not disrupt unduly the employer’s operations. The FMLA regulations permit an employer to require an employee to provide written notice of the need for leave and to call in all absences.

Scenario #2:  The Humble Brag on Social Media

Joe requested several days of FMLA leave for physical therapy following knee surgery. While on approved leave, Joe posts a picture on Facebook of him surfing in Hawaii. Joe’s co-worker brings this post to your attention. What can you do?

Tip #1: Investigate First

While the initial reaction to Joe’s post might be to discipline him, it is important to take the time to conduct an independent investigation about the information on social media and/or provided by a co-worker. Employers should at least meet with the employee to discuss the leave, ask for a description of his limitations, and review the social media post to get an explanation. A determination should be made, after hearing the employee’s explanation, if any, as to the reliability of the social media post and if it reflects performance of activities beyond the medical restrictions the employer has been provided for that employee. If so, misuse of FMLA leave may be indicated. But use caution before making such a determination, and give the employee the opportunity to explain or add context.

Tip #2: Require Complete Certifications and Recertifications

Employees should be required to provide detailed certifications as a condition for leave.  If an employee submits a certification with insufficient information about the employee’s medical condition, the employer can require the employee to correct the certification.  The employer can also list the employee’s essential job duties on the certification form so the health care practitioner can assess whether the employee is prevented from doing his or her job.

For conditions requiring inconsistent absences, an employer may request recertification every thirty days in connection with the absences. An employer may request recertification more frequently if, as here, the employer receives information that casts doubt on the employee’s stated reason for the absence.

Tip #3: Enforce Paid Leave Policies

Employers may require employees to use accrued paid leave before taking unpaid FMLA leave. Employees may be less inclined to misuse FMLA leave if they are required to use paid time off first. This policy will also prevent employees from taking paid leave after FMLA leave expires.

Employers walk a thin line between granting legitimate requests for leave and enforcing rules preventing abuse. More often than not, old fashioned common sense and good judgment carry the day when detecting these issues. Establishing and enforcing clear policies, and educating managers about the rules, can help employers to reduce the instances of FMLA abuse.

© 2019 Schiff Hardin LLP

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About this Author

Schiff Hardin represents management in labor matters and employment-related litigation, and provides counsel to employers with respect to all legal aspects of employer-employee relations. Our firm's labor law practice encompasses both the private sector and the public sector for large and small employers in a broad range of markets and industries. Our Labor and Employment Group works cooperatively with attorneys in our Employee Benefits and Executive Compensation Group to provide our clients with comprehensive assistance in every aspect of the employer-employee relationship.

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