You can put a stop to rampant intermittent FMLA abuse
You’d have to be made of stone not to want to help out a co-worker who’s genuinely sick or needs intermittent FMLA time off to handle a family crisis. But people who try to beat the system, using family medical leave to malinger at your expense, are another matter. FMLA intermittent leave is particularly open to this kind of abuse. There are dozens of real-world stories like this:
- A nurse who gets migraines and needs time off on Fridays, Mondays and the day before or after a legal holiday.
- An assembly-line worker whose children are sick so often they’d be held back a grade if all the absences were truly legit.
- A salesman who takes off for physical therapy and ends up on the golf course for the rest of the afternoon.
‘30 Critical Questions About FMLA Intermittent Leave’
Intermittent FMLA: Not a free ride
FMLA intermittent leave is not the handout some employees think it is. There are ways you can tighten up on intermittent FMLA abuses without running afoul of complex rules and regulations. Here are specific steps:
- Require scheduled FMLA intermittent leave. Intermittent FMLA allows for leave in small blocks of time, but it also gives you the right to insist that any time off is scheduled “with reasonable notice” so that it does not disrupt your work flow or operations.
Example: Calling out sick in the morning after spending the previous night at a rock concert isn’t “reasonable notice” and need not qualify as an intermittent FMLA-protected absence.
In addition, the law requires that employees must “make a good faith effort” to get any necessary medical treatments during off-duty hours or on their day off.
- Find a second medical opinion to justify intermittent FMLA. When an employee asks for FMLA intermittent leave, insist on a medical certification from their doctor that specifies the projected number of treatments, dates, and the projected recovery period after each treatment. With an employee’s sign-off, you can have a company-paid doctor speak with the employee’s provider both to confirm the treatment and to see if treatments can be scheduled without missing work.
Key point: Experts say getting more specific information up front, not just “a note from the doctor” is essential to curbing potential abuse of intermittent FMLA.
- Require monthly FMLA re-certification. The law gives you the power to require medical re-certification at least once every 30 days, to ensure that the need for FMLA intermittent leave continues to exist. Furthermore, the law says the employee must pay for this re-certification. Costly co-pays can serve as a disincentive.
- Transfer the worker to a different position if doing so would make intermittent FMLA absences less disruptive.Spelling out this option, and making clear that you will use it if needed, can serve as a disincentive.
Two cautions: (1) Pay and benefits need to remain the same, and (2) the transfer cannot be punitive in nature.
- Tap accrued vacation or sick pay before approving FMLA intermittent leave. Once accrued sick time or vacation time is used up, you can dock pay for any FMLA intermittent leave, in whatever increment of time your payroll system allows.
Note: You can freely dock salaried workers without worrying that doing so will reclassify them as hourly under the law. Intermittent FMLA regulations specifically allow this.
Cutting FMLA intermittent leave overhead
Employees taking FMLA intermittent leave are not immune from disciplinary action, termination or layoff.
True, you cannot fire someone just for taking intermittent FMLA leave, but you can take adverse action for any other legitimate reason, such as violating company rules or poor performance.
Most common reason: Employees pinch-hitting for an absent worker discover what a mess was left behind. Many courts have ruled that such newly discovered performance problems are legitimate grounds for dismissal.
Source: www.findlaw.com
