Avoiding FMLA abuse: How to tell if an employee is ‘faking it’
If you’ve dealt with FMLA abuse, you know that violators act like family medical leave is free vacation time. Here’s how you can minimize FMLA violation in your company:
- Create a comprehensive FMLA certification form. Most FMLA certification forms provided by the DOL just ask doctors to check off boxes. This leaves out a lot of detail, leaving a lot of room for FMLA violation.
‘FMLA Certification: What Every Manager Needs to Know to Prevent Abuse’
But what most companies don’t know is: You can ask for more specific information about the worker’s condition to determine if leave is truly necessary—or if it’s FMLA abuse. The certification form could ask doctors:The date the condition startedEstimated duration of the condition.
Definition of the worker’s condition.
Required treatment.
Whether hospitalization is required.
Whether the condition will incapacitate the worker
- Ask for a second opinion. If a doctor says an employee has a back condition, and you notice the employee seems to be fine, ask for a second (or even third) opinion to verify the diagnosis. The second or third doctor may be more hesitant to approve what may be an FMLA violation.
Just keep in mind it’s at your expense.
- Ask for re-certifications. You can do so every 30 days (at employee’s expense) under the FMLA. Abuse can result if an employer ignores certification rules, for a condition might not be deemed severe enough for leave after 30, 60, or 90 days.
- Attach a letter to the certification along with the worker’s attendance record. In the letter, ask the doctor whether the worker’s condition is incapacitating enough to warrant the days she was absent. The doctor could help you catch an FMLA violation.
That’ll accomplish a couple of things:
– The employee who’s milking the leave will get embarrassed and perhaps think twice about FMLA abuse in the future.
– The doctor might be more truthful in designating leave for the worker.
Based on Steven Teplinsky’s Audio Conference entitled: Stop Intermittent FMLA Leave Abuse Now, 5/24/06.
Company changed benefits plan, deprived workers of accrued sick days: FMLA abuse?
Employees sued for FMLA violation, but company prevailed
Is it an FMLA violation to change your benefits package and deny employees benefits accrued under the old plan? According to a recent Court of Appeals decision, no.
After a merger a few years ago, Wells Fargo Bank changed its benefits policy. Although the new plan was generous, it didn’t recognize the sick days accumulated by employees prior to the merger.
Angry over losing their stock of paid sick days, several employees filed a class-action suit, claiming themselves victims of FMLA abuse.
FMLA requires employers to provide at least 12 weeks of unpaid leave to employees for:
- The treatment of a serious disabling health condition
suffered by the employee - The birth of a child
- The care of a child, spouse, or parent who suffers
from a serous health condition.
The court ruled that Wells Fargo’s change in benefits did not qualify as FMLA violation. The judge ruled that FMLA “does not create an entitlement to accrued sick time. In short, the FMLA does not require Wells Fargo to ‘lock-in’ a particular benefits package.”
Bottom line: The court rejected the plaintiffs’ attempt to link sick time policies to the FMLA. Abuse would mean violation of FMLA regulations, but Wells Fargo’s new plan met the minimum requirements of the act. That’s what mattered to the courts.
Cite: Funkhouser v. Wells Fargo Bank, NA, U.S. Court of Appeals, 9th Circuit, Nos. 00-35397 and 00-35410, 5/15/02.
