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Expert provides five tips for fighting back against FMLA abuse

It’s only a small number of employees who take advantage of family and medical leave—estimates put it between five and 10 percent of the workforce—but because they keep taking leave over and over again, in any and every way they can, the costs add up in terms of the price of temporary help, lost productivity, missed deadlines, late shipments, lost business, and overworked staff.

Abuse of the Family and Medical Leave Act (FMLA) typically manifests itself as regular long weekends (the “Friday/Monday Leave Act”) and/or annual illness at the same time of year, often following denied requests for time off, during nice weather, or at traditional holidays. And then there is the employee with the “perfect fit.” That’s the one who manages to use exactly 12 weeks of leave every year.

FMLA abusers believe that there is nothing an employer can do about it as long as they get their certification. Matthew S. Effland explained how to fight back:

  1. Train your managers,
  2. Check your policies,
  3. Require complete certification,
  4. Get second opinions, and
  5. Deploy surveillance and investigative techniques.

While the FMLA is stacked in favor of employees, you can and should use the tools the law gives you. Be prepared for resistance, but hold firm and be consistent. Your employee will get the message.

Train your managers. The FMLA is one of the few employment laws that allows for individual liability. This gives your managers some “skin” in the game. They are the front line of defense (and liability) and a key source in recognizing the signs of abuse. They will know what is going on with a given employee, and they are charged with “institutional memory,” meaning that what one manager knows, all managers are deemed to know. Good communication is important, as it is not uncommon for employees to “shop” managers or HR staff until they find someone who will say yes.

Train your managers to alert you when an employee is out with a potentially-qualifying illness so that you can send out the FMLA paperwork. You are the brain of the “institutional memory” and the managers are the limbs. Don’t put the burden for knowing when to send the paperwork on your supervisors.

Check your policies. Review your leave policies—abusers know the policies inside out so be sure that the policies say what you mean. Don’t bury key issues in small print. By leaving out essential terms, an organization expands an employee’s leave rights. Make sure that all necessary information is given to employees. Spell out who to contact with leave questions, who should/should not be told about absences, and provide alternative contacts for when a designated contact can not be reached.

The new regulations allow employers to require compliance with their “call-in” procedures; if there is a procedure in place, an employee who phones a buddy to relay the message that the employee is not coming in to work is noncompliance. Employees must now comply with an employer’s procedures absent unusual circumstances. But keep in mind that the longer the call-in requirement (say, four hours versus one hour), the more likely there will be unusual circumstances.

In response to a question about an employee who sent a text message from the doctor’s office, rather than following his employer’s one-hour “phone in” procedure, Mr. Effland suggested that the text message should be treated as notice (although he did raise the question of why the employee was in the doctor’s office—was it a regularly-scheduled exam or an unscheduled visit) because courts don’t like employers putting form over substance.

With regard to a no call/no show situation, Mr. Effland said employers are not required to attempt to track down the employee to determine the reason for the absence, but doing so does put the employer in a better position defensively if it is done uniformly for all employees.

Require complete certification. Mr. Effland recommended that you require certification for all FMLA leave, not just those that are unclear or suspicious. If an employee won’t sign a HIPPA release, deny the leave request.

The doctor’s fee for completion of FMLA certification is initially the employee’s responsibility, which is a good deterrent. Moreover, you are entitled to all of the information contained in a medical certification. Push back on incomplete or insufficient certifications; once they are accepted, you’re stuck with them. If the form is unreadable, anyone except an employee’s immediate supervisor can call the doctor about it. If the form is incomplete, give it back and give the employee seven days to get it fixed.

Consider attaching a job description and attendance record to the certification form with a space for the doctor to initial the attachment. You probably can’t require that the doctor initial it, but it provides you with questions you can ask the employee: for example, do absences always have to be on Fridays?

Doctors hate the FMLA more than HR does, said Mr. Effland, because it puts their credibility at risk. He noted that we’re seeing more honest doctors these days as doctors are being put more and more on the spot.

The recent H1N1 flu outbreak has created some uncertainty regarding FMLA designation. The doctors were telling people with the flu to stay home because there wasn’t anything the doctors could do for them. Yet, if you credited that absence to FMLA, the employee may claim that he or she was not incapacitated and that you robbed them of leave entitlement for the number of days they were out with the flu.

Get second opinions. The FMLA gives you this weapon. Why would you toss out an arrow from your quiver when there are so few? The FMLA permits second opinions by a doctor of the employer’s choosing once a year if there is reason to doubt a certification’s validity. Employees who don’t cooperate lose FMLA protection.

While the employer bears the cost, second opinions are worth the price when you consider the cost for someone to be out for 12 weeks. For a second opinion, choose a doctor that you don’t regularly use (e.g., not your workers’ compensation doctor).

Investigate suspected abuse. There are several potential benefits to employing surveillance and investigative techniques: you can confirm your suspicions or put them to rest, you can obtain solid evidence to support your employment decisions, and it can be very persuasive to fact finders if done correctly. This doesn’t mean get Joe from accounting to follow around suspected abusers. Use off-duty police officers or private investigators. As a neutral third-party, they have more credibility.

Surveillance has been supported by the courts. In a 2008 case, an employer used surveillance to catch an employee, who frequently called in with a migraine, helping her husband with his yard business during the day. The court upheld the employee’s termination because the employer had an “honest suspicion” of abuse.

Surveillance is not without potential pitfalls, however, including claims of retaliation and disparate treatment, invasion of privacy, an inability to easily articulate why the employee is being surveilled, and inconsistency. Additionally, surveillance may not provide conclusive evidence of fraud.

Source: “FMLA in the Trenches” presented by Matthew S. Effland at the SHRM 2010 Annual Conference and Exposition, San Diego, Calif., June 28, 2010.