combatting fmla abuse - tips & strategies · combatting fmla abuse- tips & strategies...
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THE PURPOSE OF THE FMLA
The Family and Medical Leave Act is designed to giveeligible employees protection related to absences for:
Certain serious medical conditions of employee
Certain serious medical conditions of family member
Opportunity to bond with new child
FMLA WAS INTENDED TO BALANCE RIGHTS
The FMLA was intended to balance respective needs andrights:
Employee’s need for job security where family needs arise
Employer’s right to have a high-performance organization
MISUSE OF THE FMLA Most employees use FMLA as it was intended However …
Some employees either intentionally or unintentionally misuse leave for reasons not sanctioned bythe FMLA
– Monday – Friday issue
– Annual timing – employee takes FMLA the same week every year
– Holiday timing – flare ups adjacent to days off and holidays
– Consistent exhaustion of 12 weeks leave every year
– Intermittent leave
o Using more time than stated
o Suspicion of using for personal or vacation time
– To avoid consequences of discipline or poor performance
MISUSE OF FMLA
Fraud
“An employee who fraudulently obtains FMLAleave from an employer is not protected by theFMLA’s job restoration … benefits.”
29 CFR § 825.312 (g)
MISUSE OF FMLA LEAVEReinwald v. The Huntington Nat’l Bank, (SD Ohio Feb 3, 2010):
“ An employer does not violate the FMLA by terminating an employee if theemployer held an honest belief based on particularized facts that the employeeabused that leave….We do not require that the decisional process used by theemployer be optimal or that it left no stone unturned. Rather the key question iswhether the employer made a reasonably informed and considered decision beforetaking an adverse employment action.”
Keys:
Honest belief
Based on particularized facts
Reasonably informed and considered decision
IN RETALIATION ACTIONS
In a retaliation case, the key question is the employer’smotive
Was the termination was motivated by a retaliatoryreason for assertion of FMLA rights or a non-retaliatoryreason
such as poor performance
employee fraud
GETTING THE SCALE BALANCED AGAIN
This webinar will touch upon some tips andstrategies for combatting FMLA abuse.
FMLA POLICIESSTART WITH A SOUND FOUNDATIONAND PROCESS
POLICY CONSIDERATIONS
Some provisions that help curb abuse:
1. Require all requests for FMLA leave and intermittentleave be in writing
No misunderstanding about the type of leave requested
Clear idea of dates involved
Clarifies the circumstances of the need for leave
May prompt the employee to think twice if the request isnot legitimate
CONCURRENT LEAVES
2. Require FMLA leaves to run concurrently with otherleaves to the extent permissible
Substitute paid for unpaid leave
If employees know they are losing vacation time, may thinktwice if the request is not legitimate
Limits operational burdens
– 12 weeks FMLA followed by additional days/weeks ofother paid or unpaid leave
Be mindful of state paid sick leave or paid family leave lawsthat may be contrary and not permit this practice
THE DOCTOR’S NOTE3. Inform employees that medical certifications and re-certifications are required
Make sure to detail when certifications are required:
– New leave
– Reason for leave changes
– Leave is extended
– When a new leave year starts
– If there is a pattern of suspicious absences
– If there is objective information that provides a reason to doubt
– If the leave exceeds the previous certification, i.e. more time is taken than certified
Also give a date when certifications or re-certifications must be provided
CALL ME …
4. Mandate strict compliance with call-in procedures
FMLA says employees must comply with employer’s “usualand customary” notice and call-in practices
Call-in procedures must be uniformly applied
Notice that leave requests may be denied or delayed if non-compliant
BUT – use common sense
TIME TO PRACTICE:
Janie is an employee in the marketing department. Recently shehas had a spotty attendance record and her supervisor and thedepartment manager are getting fed up. So, when Janie’s soncalls to say his mother will be out for a few days. Both supervisorand manager decide to implement discipline procedures. Janiedidn’t follow the call-out procedures, and when she is three daysno call, no show, they request termination notice to be sent by HR.
Was the termination the right move?
LET’S VOTE
A. Yes, the employee did not follow the call-in procedure
B. Yes, the employee did not follow the call-in procedure andwe uniformly apply the policy.
C. Yes, the employee did not follow the call-in procedure, weuniformly apply the policy, and the employee was no calland no show for three days in a row.
D. None of the above.
LET’S DISCUSS . . .
If you said “D” that is the best answer.
Need to be flexible. At least, get more information:
Inquire why the employee cannot call
Let the son know you need more information to determine thestatus
Provide the son with FMLA forms to give to mother
Make sure your managers and supervisors know to involveHR
This hypo was based on a real case that resulted in a largejudgment against the employer.
MORE POLICY SUGGESTIONS
5. Prohibit secondary employment while on leave
FMLA regulations permit employers to have policiesrestricting outside or supplemental employment while onFMLA leave
Make sure this same policy applies to other leaves –disability, WC, personal leaves
Courts have dismissed FMLA claims under thesecircumstances
AFFIRMATIONS BY EMPLOYEES
6. Consider a policy provision requiring employees certify each absence
FMLA regulations prohibit employers from requiring a doctor’s cert for every absence but not a certfrom the employee
Consider an acknowledgement from employee confirming the absence is legit FMLA absence
Advise discipline or termination if false information is provided
Be consistent with other leaves or absences
– ADA
– WC
– Sick day
– Personal leave
MORE POLICY THOUGHTS …7. Second and third opinions may be required
Usually reserved for situations where the original certification is unclear or suspect
Employer pays
However, informing employees up front a 2nd or 3rd opinion may discourage abuse
Again, do not single out and ensure conformity with other leaves
Can also be useful on return to work certifications if you have doubt the employees is ableto return to work
PracticalAdvice: Develop a relationship with health care providers who can assist whennecessary
A NOTE ABOUT YOUR FORMS …Review your forms to see if they permit you to contact the health care provider to requestclarification
Consider whether you may want to require HIPAA compliant release of information
Remember to be consistent and use with other leaves
It is best to have HR, manager or other health care provider review any medical information --not the employee’s supervisor
Be sure you are not requesting too much information
Use HIPAA compliant release if you are going to request clarification and if there will be adisclosure of protected health information
Make sure you are separating any medical information from the employee’s personnel file
CONFORM YOURPRACTICES TO YOURPOLICESYOU HAVE TO WALK THE WALK …
A REMINDERYou can have the best policies in the world, but if you do not followthem, you are in trouble
Training for HR, managers and supervisors is helping for ensuringpolicies are followed
Consider periodic audits of your FMLA leaves to spot any issuesand non-compliance
Ensure that your policies are being practiced consistently
INTERMITTENT LEAVETIPS ON MAKING THIS MANAGEABLE FORALL
SOME PRACTICAL SUGGESTIONS
1. Tighten up your recordkeeping
Make sure you are recording all absences related to the condition
Make sure these absences aren’t counted against employee under attendancepolicies
2. Require employees to schedule medical appointments around work schedule
FMLA regulations permit employers to require that employees to scheduleplanned medical treatments in a way that least disrupts the employer’s operations
Employers can inquire whether appointments can be scheduled before or afterwork, or on days off
Employers can inquire about frequency
3. Temporary transfer
If the need for intermittent leave is foreseeable, the employer cantemporarily transfer the employee to an alternative position that bestaccommodates the recurring periods of leave
BUT – must have equivalent pay and benefits
Need NOT have equivalent duties
4. Make sure you are capturing absences that are FMLA
Train managers to get sufficient information to determine whether theabsence is FMLA
Train front line managers and supervisors to spot recurring absencesthat might qualify for FMLA (if not designated already)
– Designate those absences and start recording them
CERTIFICATIONS AND RE-CERTIFICATIONS
5. Make sure the health care provider’s certification is clear
From the FMLA Regulations:
The employee must provide a complete and sufficient certification to theemployer
The employer shall advise an employee whenever the employer finds acertification incomplete or insufficient, and shall state in writing what additionalinformation is necessary to make the certification complete and sufficient.
A certification is considered incomplete if the employer receives a certification,but one or more of the applicable entries have not been completed. Acertification is considered insufficient if the employer receives a completecertification, but the information provided is vague, ambiguous, or non-responsive.”
FMLA REGULATIONS The employer must provide the employee with seven calendar days (unless
not practicable under the particular circumstances despite the employee'sdiligent good faith efforts) to cure any such deficiency.
If the deficiencies specified by the employer are not cured in the resubmittedcertification, the employer may deny the taking of FMLA leave, in accordancewith § 825.313. A certification that is not returned to the employer is notconsidered incomplete or insufficient, but constitutes a failure to providecertification.
NOTE: Employee must be advised in writing of the disciplinary consequencesof failing to provide CHP.
CLARIFICATION AND AUTHENTICATION
If an employee submits a complete and sufficient certification signed by the healthcare provider, the employer may not request additional information from the healthcare provider.
But the employer may contact the health care provider for purposes of clarificationand authentication of the medical certification (whether initial certification orrecertification) after the employer has given the employee an opportunity to cureany deficiencies as set forth in § 825.305(c).
To make such contact, the employer must use a health care provider, a humanresources professional, a leave administrator, or a management official.
Not the employee’s supervisor
Consider engaging a health care provider to review the documentation andrequest clarification
RECERTIFICATION Generally, the employer may not request the employee provide recertification more often than every 30
days and only in connection with an absence by the employee
In all cases, and where the condition is of indefinite duration, the employer can request a certification forabsences every six months
Can request in less than 30 days only if:
– Employee requests an extension of leave
– The circumstances described by the certification have changed significantly
– There is reason to doubt the stated reason for the absence or the continuing validity of the existingmedical certification
NOTE: the employer may provide the health care provider with a record of absences and ask if the serioushealth condition is consistent with the leave pattern
No 2nd or 3rd opinion on the recertification
LET’S PRACTICEWhen can you request recertification?
A. An employees HCP certifies that migraines will last indefinitely.
B. An employee’s HCP certifies that a chronic serious health care condition(diabetes) and provides no time frame for duration of the condition
C. The employee’s chronic serious health condition (asthma) is certified to last foran indefinite period, with possible episodes of incapacitation (coinciding withpollen season) over a three month period.
D. Certification specifies an indefinite period but indicates a need for breathingtests and treatments to be conducted over the next three months.
Sorry, this was a trick question.
ANSWER:
Under all three scenarios, the leave is indefinite. So, the employercan request recertification every 30 days.
ANOTHER EXAMPLE
Employee repeatedly calls in for intermittent FMLA leave onFridays, Mondays and days adjacent to Holidays.
Can the employer request a recertification?
A. Yes
B. No
Regulations state that as part of the information allowed to be obtained onrecertification for leave taken because of a serious health condition, the employermay provide the health care provider with a record of the employee's absencepattern and ask the health care provider if the serious health condition and needfor leave is consistent with such a pattern.
ONE MORE EXAMPLE
An employee is on FMLA leave for four weeks due to knee surgery,
The employee plays in a company sponsored softball league during theleave
Can the employer request recertification, even though 30 days haven’t
A. Yes
B. No
ANSWER
Yes, the employer can request early recertification because it has receiveddoubt upon the stated reason for FMLA or the continuing validity of the
INVESTIGATORS
CAN WE USE AN INVESTIGATOR? Some companies use investigators to assist in preventing fraud under WC or FMLA
Tread cautiously …
Make sure you have a reasonable good faith belief to believe suspicious or fraudulent
– Be able to articulate facts that would lead a reasonable person to have doubt about the
Ensure you are acting consistently with policies and other similar circumstances
Consider discussing with employment counsel first
This not a DIY situation – must be a licensed PI or you could run afoul of “stalking laws”
HR ADVANTAGE ADVISORY
HR Advantage Advisory offers small and mid-size businesses robustoutsourced human resource, risk management, and compliance solutions
HR Advantage Advisory can function as a fully outsourced Human Resourcessolution for companies who might otherwise not be able to afford a full-time,certified HR professional
HR Advantage Advisory can augment an existing HR department and performthe function(s) that either they don’t like to do, or maybe they don’t have theexpertise to do (i.e. leave of absence management)
www.hr-aa.com
OTHER RESOURCES
www.clarkhill.com/contents/labor-employment-law
www.hr-advantage.com
https://www.eeoc.gov/eeoc/publications/ada-leave.cfm
THANK YOULEGAL DISCLAIMER: THIS DOCUMENT IS NOT INTENDED TO GIVELEGAL ADVICE. IT IS COMPRISED OF GENERAL INFORMATION.EMPLOYERS FACING SPECIFIC ISSUES SHOULD SEEK THEASSISTANCE OF AN ATTORNEY.