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.).

An employee suffered a concussion at work, and his doctor ordered him to take time off. He was granted several weeks of FMLA leave.

While he was out, a co-worker who lived near the employee saw him building a porch in his front yard. The work included lugging around heavy planks of wood and operating power tools. The co-worker let the HR manager know what he’d seen.

When questioned, the employee admitted to spending his leave working on the porch. He was fired for taking leave when he didn’t need it.

FMLA abuse?

He sued the company — and won. The company argued that since he was well enough to build the porch, he was well enough to return to work.

But the court disagreed. Performing other activities while on leave might be evidence of abuse — but not proof. Being able to build a porch didn’t necessarily mean he was able to do his regular job.

Given the fact that the employee had completed adequate certification and had been told by his doctor not to go to work, the court decided his leave was legitimate.

Cite: Weimer v. Honda of America Mfg., Inc.

The facts:

An employee filed a request for vacation time. It was denied. Later he requested FMLA leave (to recover from an injured knee) for roughly the same time frame, with a medical certification from his doctor. He was approved for leave but while he was gone the company, putting two and two together, decided to check in with him. He wasn’t home. So when he came back, he was questioned and he admitted to spending part of the time in Las Vegas. Not surprisingly, he was fired. But he sued, maintaining that his leave was legit.

The employer said:

The FMLA fraud was obvious: The employee asked to take vacation, was turned down, and faked a medical condition so he could take the trip anyway. But the employee claimed that once the company approved leave, that was the end of it, and if it suspected foul play, it should’ve asked for a second opinion or not approved the leave.

Who won the case?

Answer: The employer.

Why: The judge didn’t buy the employee’s argument. The law says that employers can ask for a second medical opinion – there’s nothing that says they can’t look into suspected fraud if they choose not to.

Also, courts have upheld employers’ policies of checking in with employees who are out on FMLA leave. That can be an effective way to make sure that employees who say they’re home sick really are.

Cite: Crouch v. Whirlpool Corp.

Normally when an employee takes intermittent FMLA for long term conditions, you can ask for a new medical certification every 30 days, as long as the employee has been absent since the last certification. However, there are situations when companies can get a certification more frequently. Those are:

• When details about the employee’s need for leave change (for example, he or she needs off more frequently, or for a longer duration each time), and
• When 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.

Also, if company policy requires HR to check in with employees who are out on leave, and employees don’t seem to be home sick when they say they are, it’s OK to get a new certification.