- Blog post
How to handle those rare employees who abuse FMLA
FMLA abuse is a drain on your team’s morale and productivity
Most employees, of course, work hard and play by the rules.
But sooner or later, every manager or supervisor deals with a guy like Tom, who’s always looking for an angle. When Tom found out about this wonderful thing called FMLA intermittent leave — which allows workers to take FMLA leave in small chunks to deal with chronic health or family problems — he suddenly started getting terrible migraine headaches. And always at the worst possible time.
Like today. When Tom calls in sick, his boss George says, “Well, gee, Tom, your shift starts in half an hour. I’ve got an emergency shipment to unload. It’s going to be really tough for me to get someone else in on short notice.”
Tom says he’s too sick to come in and George is thinking, “I better not say anything or I’m liable to get sued.”
The company certified Tom for intermittent FMLA leave a few months ago. His doctor’s note said Tom can take off work when he’s got a migraine. But George thinks he’s abusing it. Whenever things get busy at work, Tom starts rubbing his head.
Are managers powerless to fight FMLA abuse
No. Managers CAN take action to curb FMLA abusers like Tom. But they have to go about it the right way.
Don’t say, “Look, Tom, if this happens again, I’m going to write you up.” Reacting out of frustration and threatening to strike back is the biggest mistake you can make as a supervisor. If Tom sues, his lawyer will say you interfered with FMLA leave rights — and that’s illegal.
What you CAN do is get Tom to recertify his need for intermittent leave — assuming your company policy allows supervisors to do so. In some organizations, supervisors have to consult with HR first.
But under the proper circumstances, the employer has the right to require employees to go back to the doctor for a fresh, up-to-date certificate showing that they still need FMLA intermittent leave.
That’s a powerful tool to clamp down on employees who want to use FMLA as a get-out-of-jail-free card whenever they don’t want to come into work. Use it consistently and they’ll get the message. Which is good for your company — and all of your other employees who play by the rules.
photo credit: Tobyotter
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i thought recertification can only be asked no less than every 30 days following an the use of Intermittent FMLA. Furthermore, supervisors do not have a legal right to even KNOW why you have been approved for FMLA, nor do they have a right to ask you if your condition is getting worse.
I’m a senior FMLA specialist. Amongst FMLA, I process various state leaves as well.
Here’s some things to know as an employee:
1) FMLA protects an employee from being subject to the attendance policy, therefore as an employee missing work under FMLA would still be eligible for the Honor System because the absences cannot be held against him/her. FMLA does not protect poor job performance therefore if the employee is not able to preform their job, they may be subject to the metric system.
2) When having a pending or approved FMLA on file, an employee does not have to tell you why (s)he’s taking fmla, whether or not (s)he will see a doctor, how long (s)he plans on missing, and YOU MAY NOT request a doctor’s note. All an employee has to say is that (s)he is missing work under fmla- care for self or family member- absence is for incapacity or treatment. Supervisors are not preview to any kind of medical information. The only people preview to employee’s medical information is top HR reps.
Because flare ups are unpredictable, an employer does not have the right to ask somebody when (s)he plans on returning to work. As long as the employee is not exceeding the allowed frequency, they may take as much time as needed off from work.
3) In the event an employers notices a pattern of abuse, medical recertification can be requested every 30 calendar days. An employee must be very careful when asking an employee to recertify so frequently because in the event there is no true pattern of abuse, the employer can be fined by the government and the employee can sue for discrimination.
Business needs being impacted negatively due to an employee missing unplanned time off is not grounds for recertification.
I.e. If an employee is going to appointments 3 hours per day, 3 days a week and the Medical Certification states it, the employer asking for recertification due to abuse is wrong and I would typically advise supervisors or HR not to.
Most common recert requests are for the Friday/Monday/day after holiday sick folks. Even then, all the doctor has to do is just change the signature date and refax the forms.
4) An employer can enforce a reporting timeframe, however the employee must be provided ample time to report each missed day, I.e. 1 day in arrears. Also, the employer can have a policy of a 60 minute minimum timeframe prior to shift starting for the employee to inform (s)he will not be coming in. Please note this does not apply to emergency situations. The reporting timeframe or submission grace period for leave no longer applies to somebody who is unable to report time for themselves. I.E. coma.
5) YOU CANNOT CALL EMPLOYEES WHILE THEY ARE OUT ON LEAVE TO SEE OF THEY WILL RETURN TO WORK…. under any circumstances!!!!!!!
Following up with somebody while they’re on leave, whether it’s intermittent or continuous, is absolute harassment. Human Resources may contact the employee to discuss return to work plans, only after the leave ends. Please note that employees need to be given a minimum of 15 days to extend a continuous leave.
6) If an employee is spotted at a mall, restaurant, water park etc while on FMLA does not necessarily mean the person is abusing. Some parents take children to restaurants after going to the doctor, some anxious/depressed patients might be encouraged by their therapists to somewhere fun after a session to aliviate the anxiety or depression.
The list goes on…. but honestly, it’s nearly impossible to deny FMLA to people because the ale itself is so gray. Did you know that pregnant women do not even need to see a doctor to go on fmla?!
Employers can protect themselves by having a strict reporting timeframe, having a rolling back calendar and most importantly… OUTSOURCE this way they won’t get sued.
This article got every single point wrong.