Besides having become a virtual nightmare of legalistic forms and issues, the FMLA has allowed many employees to take advantage of their employer’s leave of absence policies and caused numerous headaches for HR. This article will provide you with an overview of what you need to know as a seasoned HR Professional to take control now and curb this FMLA abuse.
The first tip on how to curb FMLA abuse is to not provide FMLA leave to employees who are not entitled to FMLA. This appears to be common sense but you would be amazed at how many HR professionals either don’t pay attention to this or don’t realize they are doing it. So to avoid this, make sure you understand who is eligible for FMLA. Only employees with 12 months of service who have worked for 1,250 hours in the preceding 12-month period and who work for an employer with 50 or more employees within a 75-mile radius are eligible for FMLA. Many multi-state employers violate this tip all the time by providing employees at some of their sites that do not meet the 50 employee requirement with FMLA simply because it is easier than having different rules for different company locations. My advice is to provide employees at your locations with less than 50 employees with Non-FMLA leave of absence that provides the exact same benefits to the employees but does not guarantee reinstatement to the same position. Be careful to not provide FMLA to non-eligible employees because some courts have held that employers that do this will be later unable to claim the employee was “really ineligible” under the theory of “equitable estoppel”.
The second tip to help curb FMLA abuse is to not provide FMLA leave for reasons not covered by the Act. Employees often seek to take FMLA leave for (1) an impairment that does not constitute a serious health condition and (2) for a family member that does not meet the definitions set forth in the FMLA regulations. So, for instance, an employee takes FMLA leave to care for his mother-in-law or his Aunt. To help curb FMLA abuse and stop employees from taking FMLA leave for reasons not covered, make sure that you only allow employees to take FMLA leave for their own serious health condition or for the serious health condition of their spouse, child or parent (the definition does not include in-laws or domestic partners but may under some state laws). They may also take FMLA leave for the qualifying exigency of the employee’s spouse, child or patent who is on active duty or called to active duty or for the employee’s need to care for a spouse, child, parent or next of kin that is a covered service member. Make sure you understand the definitions of these terms and review all FMLA leave requests to ensure that they meet these definitions.
Tip # 3 for curbing FMLA abuse is to make sure that you count all FMLA-qualifying absences towards the employee’s 12-week FMLA entitlement. By doing this, you are ensuring that you are whittling away at the employee’s 12-week entitlement rather than letting them take absences and then still have 12 weeks of FMLA leave available. Many employers mistakenly assume that it is the employee that requests FMLA leave and if they have not requested it then the absence is not FMLA leave. This is untrue. The law actually allows the employer to designate all FMLA-qualifying absences as FMLA leave and HR should ensure that it does this and gets the designation letters out to the employee within 5 business days of learning that the absence is FMLA-qualifying. You should also make sure that your policy states that FMLA leave runs concurrently with all other paid time out such as short-term disability or workers’ compensation.
Tip # 4 is to require adequate medical certifications to substantiate that the employee or their spouse, child or parent has a serious health condition within the meaning of the FMLA. You should require that the employee submits the certification. You should then closely examine the certification and follow-up to get clarification or to authenticate the certification if necessary. Remember that the employee’s manager is never allowed to contact the employee’s health care provider. However, under the amended regulations, HR Professionals or leave administrators may contact the employee’s health care professional to authenticate or clarify the FMLA medical certification.
The 5th tip for curbing FMLA abuse is to ensure that you manage intermittent FMLA leave properly. Employees are now required to follow your normal call-in procedures when taking FMLA leave so make sure they do this even when taking intermittent FMLA leave. Also, remember that you don’t have to and should not allow employees to take FMLA leave to care for a child after birth or foster placement or adoption. This should be set forth in your FMLA policy. Also, remember that the FMLA does allow you to transfer an employee that seeks intermittent leave to a position that better accommodates the intermittent leave.
FMLA is a complicated and legalistic law that employees often abuse. Follow these tips to ensure that your employees are less likely to abuse their FMLA leave and to ensure that your organization is in full compliance with the law.