FMLA abuse: 4 ways to fight back and not get sued
October 7, 2008 by Sam NarisiPosted in: Best Practices, FMLA, Special Report
As much as intermittent FMLA can help employees who really need it, there are always those who try to game the system. Here are some tools that help HR and managers fight abuse.
1. Certification form
The most important tool in HR’s arsenal: the medical certification form.
Some employees abuse FMLA by getting a carte blanche certification for intermittent leave and then taking it whenever they feel like taking a Monday or Friday off.
To fight back, HR needs to make sure employees’ doctors get specific about the frequency and duration of leave they need. If a worker returns a form with phrases like “intermittent” or “as needed,” you can send them back to the doctor to get more details.
In one recent court case, an employee turned in a form that listed the frequency of her condition as “completely unpredictable.” The company asked for a more detailed form, but she never turned it in and wasn’t offered leave.
She sued, but the court sided with the company (Cite: Tome v. Harley Davidson Motor Co.).
2. Reschedule
A possible sign of FMLA abuse: An employee needs leave for doctor’s appointments — that happen to be scheduled every Friday afternoon.
In that case, the company can ask her for a certification form explaining why the leave needs to be taken on Fridays. If there’s no medical reason, HR can ask her to reschedule.
3. Recertification
Another way to make sure leave is only taken by those who really need it: Ask for recertification as often as you can.
The law allows companies to ask for new paperwork every 30 days, or more often if:
- details about the employee’s need for leave change (like if he or she needs off more frequently, or for a longer duration each time), and
- the employer gets information that casts doubt on the legitimacy of the employee’s need for leave.
For example, if an employee gets approved for intermittent leave, takes sporadic absences for a while, but later starts taking time off every Friday afternoon, the employer can ask for a recertification.
4. Check in
Some companies have policies requiring HR reps to call employees at home on FMLA leave to make sure they aren’t using it as a substitute for vacation time.
Those policies have held up in court — in fact, some courts have even given the OK to companies that hired private investigators to keep an eye on suspected leave abusers.
One warning, though: Companies need to be careful about how they use the information they gather. In one recent case, an employee took FMLA, and a co-worker who lived on the same block saw him outside building a porch.
He was fired for taking unnecessary leave — but he took the company to court and won. Just because he was well enough to do some construction didn’t necessarily mean he could still do his job (Cite: Weimer v. Honda of America Mfg., Inc.).
Tags: certification, fmla abuse, intermittent FMLA
October 8th, 2008 at 1:34 pm
“One warning, though: Companies need to be careful about how they use the information they gather. In one recent case, an employee took FMLA, and a co-worker who lived on the same block saw him outside building a porch.
He was fired for taking unnecessary leave — but he took the company to court and won. Just because he was well enough to do some construction didn’t necessarily mean he could still do his job (Cite: Weimer v. Honda of America Mfg., Inc.).”
This is absolutely ridiculous. What job did he have at Honda that was so difficult where he still had the strength to build a porch but could not do his work? Sounds like a very liberal judge to me. I hope Honda appealed the ruling.
October 8th, 2008 at 3:02 pm
[...] FMLA abuse: 4 ways to fight back and not get sued By Sam Narisi As much as intermittent FMLA can help employees who really need it, there are always those who will do what they can to game the system. Here are some tools that help HR and managers fight abuse. 1. Certification form … HRLegalNews.com - http://www.hrlegalnews.com [...]
October 9th, 2008 at 11:08 am
“To fight back, HR needs to make sure employees’ doctors get specific about the frequency and duration of leave they need. If a worker returns a form with phrases like “intermittent” or “as needed,” you can send them back to the doctor to get more details.”
This is actually harder than it sounds. The company may not contact the employee’s doctor directly per the FMLA regs. 29 CFR 825.307 “If an employee submits a complete certification signed by the
health care provider, the employer may not request additional information from the employee’s health care provider. However, a health care provider representing the employer may contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authenticity of the medical certification.”
I have found that when sending the certification through the employee to the doctor returns pretty much the same non-specific information. Finding a “health care Provider” to get clarification is even harder (we have no health care provider contracted to get clarifications from other health care providers) our EAP program would not help with this. I recently had an employee who was diagnosed with COPD. The episodes were “episodic” and the treatments couldn’t be locked down either. The doctor returned the form with the same vague language.
My own experience with my doctor was that when I need to take time off for a medical reason, the doctor asked me “how much time I wanted.” I was suprised at this “blank check” approach, but I understand, the doctor is concerned about the patient’s health (and continued business as a patient).
October 9th, 2008 at 10:14 pm
I agree with getting more specific information on the frequency and duration of intermittent leave. It’s difficult to get, but if the employee doesn’t return the completed form, the leave might be considered unexcused. I have accepted a blanket excuse temporarily, until the condition is correctly diagnosed and/or until the right dosage for medication is found. But, then I expect both the employee and his/her treating physician to properly manage the condition. Certifications that say the condition is “unpredictable” imeans they are not properly managing the condition.
This article is also misleading about requesting recertifications. They cannot be requested every 30-days. If the intermittent leave documentation states the employee has chronic condition, the medical certification is valid for the entire 12-month period. We can only request a recertification if circumstances change (e.g. note says employee suffers from migraines and will be out for 1-2 days, once per month, when s/he has a migraine, but the employee is absence more frequently) or if we have reason to question the legitimacy of the leave (e.g. employee has migraines every Monday morning). In addition, recertification cannot be requested if you send the employee for a second opinion.
October 23rd, 2008 at 8:35 pm
mi employer denied fml forms they thold me l doN’T needed to filled out anything buth when my newborn gets sick my boss rrefused to asept the doctors not so my poorly babie was suffering from breading du tu pneumonia for more than 30 minutes in the emergency room because mi boss was asking mi to tel the doctor to put a dato wen the babie was going to be discharge mi babie was weighing to be transferred to UCSF HOSPITAL 6 days ofter she gave warning for calling sick
October 24th, 2008 at 4:51 pm
Once you told your employer that your baby was sick and you needed to care for the baby (a family member with a serious medical condition), they needed to inform you that you did nor did not qualify for FMLA (had the year of service with the agency and had enough work hours in the last year). The employer needs to let you know this in a reasonable amount of time (ussually within two days). If the employer fails to tell you, I believe, you are automatically covered by FMLA and the protections apply to your job. The employer may then require you to get medical certification from the baby’s doctor. If the doctor feels that you are needed for medical comfort, transportation, or anything else they can write that into the certification and the employer will need to accommodate you.
It sounds though, that you were disciplined for not providing notice when calling in sick. Anytime you find you mght not ba able to get to work, it is ussually good practice to provide as much notice as possible to your supervisor. Regardless of the law, you are still going to be working for that supervisor afterwards, and showing that consideration can mean a lot in building and maintaining trust and open communications with the boss.