The number of employees taking Family and Medical Leave Act (FMLA) leave - especially intermittent leave - is on the rise.  Increased FMLA use inevitably means the potential for increased FMLA abuse.  Here are 10 suggestions that will help:

  1. Calculate FMLA Leave Using A "Rolling" 12-Month Period.  Although more difficult to calculate, measuring FMLA on a rolling 12-month period avoids the potential for employees to get "extra" FMLA.
  2. Request Clarification And Authentication.  When a medical certification does not make sense or when it appears an employee has tampered with a certification, use human resource professionals (never a direct supervisor) to contact health care providers directly for clarification or authentication.  Remember to provide the employee prior written notice and a 7-day opportunity to cure the defect.  If a certification is unclear and the employee refuses to provide the authorization, the employer may deny FMLA leave.
  3. Require Employees Use PTO (Paid Time Off) First.Make employees exhaust PTO for FMLA absences.  Employees will be less likely to miss work.
  4. Prohibit Outside Employment During FMLA Leave. The DOL has said that policies governing outside employment also apply during FMLA leave. The key is uniform, consistent application of the written policy; it must apply equally to employees on protected leave (e.g., FMLA, ADA, and Worker's Comp) and unprotected leave (e.g., personal leave of absence).
  5. Have Input On When Medical Treatments Are Scheduled.Regulations allow employers to request that medical appointments be scheduled before or after work.  If an appointment must be scheduled during an employee's scheduled work hours, ask the employee to schedule the appointment at the beginning or end of a shift to lessen business disruption.   
  6. Require Recertification. An employer can require recertification if the employee requests an extension of leave, circumstances have changed significantly, or the employer receives information that casts doubt upon the stated reason for an absence or the continuing validity of the certification.  For example, if an employee with anxiety or migraines takes twice the amount of leave than what is stated in the certification, request recertification to understand whether the additional absences are legitimately needed or FMLA abuse.
  7. New Year Recertification. Where the employee's need for leave lasts beyond a single leave year, require the employee to provide a new medical certification in each subsequent leave year, even when an employee has a chronic or life-long condition, such as diabetes or epilepsy.
  8. Consistently Enforce Call-In Procedures.Don't shy away from disciplining employees (other than those on an approved continuous leave of absence) for failing to follow call-in procedures, even if the employee later reports that the absence or tardy was FMLA-related. Unless the employee was unable to follow the call-in procedures due to incapacity, consistently enforce the call-in requirement with progressive discipline.  
  9. Communicate with the Doctor.  The DOL has said that an employer may provide a health care provider with the employee's absence report and ask whether a pattern of suspicious absences (e.g., absences every Friday) is consistent with the employee's condition.  Be sure health care providers have this information when they consider certification or recertification requests, and only use human resource professionals to interact with the provider when employees display unusual patterns of absences.
  10. Deduct Pay For Exempt Employees. Remember that partial-day deductions from exempt employees' pay are allowed when the partial-dayabsenceisforFMLA.

    The Family Medical Leave Act is one of the most employee-friendly federal laws, but there are strategies for battling abuse. 

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