In my experience, the majority of employees requesting leave under the Family and Medical Leave Act (“FMLA”) use their leave appropriately. Nevertheless, there are still a significant number of employees who will use the FMLA as a source of vacation days, instead of a relief for family or medical problems. Typically, these employees use “intermittent leave” under the FMLA. The FMLA does not require that all leave for one condition to be taken at one time. Instead, the act recognizes that some conditions “flare up” intermittently or or require multiple treatments over time. Therefore, employees are entitled to take leave on those intermittent occasions.
Frequently, employees are granted FMLA leave for such intermittent conditions. But, what happens if an employee’s “flare ups” always seem to occur on a Monday or Friday? What can an employer do to ensure that employees aren’t getting a consequence-free day-off when they aren’t really sick? This is an exceedingly difficult area of the law, and I strongly urge all employers to talk with their lawyer before taking direct disciplinary action as a result of suspected FMLA abuse. Also, if you suspect FMLA abuse, there are strategies to limit the abuse.
Ask for a Second Opinion.
Just because an employee’s hand-picked physician says there’s a need for intermittent leave, doesn’t automatically mean that the employee is entitled to leave. Instead, if an employer has a “reason to doubt” the validity of a medical certification, the employer may require the employee to obtain a second opinion. The employer gets to select the second doctor, but must also pay for the second opinion. The selected doctor cannot be one that the employer employs, contracts with or regularly uses. In short, you can’t sent the employee to the “company doctor” for a second opinion.
If the second opinion disagrees with the the employee’s original opinion, then the employer and employee must work in good faith to select a third doctor, whose opinion will be final.
Use Certification Forms to Your Advantage.
FMLA certification forms are your friend. Yes, they are unwieldy and confusing. But, at the end of the day, those forms should tell you exactly what conditions qualify for the employee’s FMLA leave. Here’s a link to the Department of Labor’s standard forms: FMLA Forms. If an employee takes FMLA, make sure their leave matches up with the form. For example, if the employee’s certification says they will need intermittent leave for migraines, an absence for knee pain probably won’t qualify for FMLA leave. Hold your employees accountable to the ground stated in their certification.
Ask for a Re-Certification.
Generally, employers can request re-certification every 30 days, but the request for re-certification can only be made in connection with an absence by the employee. But, there is an exception to that general rule that frequently applies in intermittent leave cases.
If the original certification indicates that the minimum duration of the employee’s condition is more than 30 days, you must wait until the minimum duration expires before requesting re-certification. But, there is also an exception-to-the-exception. At a minimum, you are entitled to request a re-certification every 6 months in connection with an absence.
Finally, the FMLA permits employers to request re-certification at any time under certain conditions. First, if the employee asks for an extension of the leave period (for example from three months to six months), a re-certification can be required. Second, if the circumstances described by the original certification have changed significantly, a re-certification can be required. There is much debate over whether a change is “significant,” so employers should proceed carefully with this exception. Finally, if an employer receives information that casts doubt upon the employee’s stated reason for absence or the continuing validity of the certification, the a re-certification can be required. The most common scenario of a “reason to doubt” occurs when the doctor’s certification says the employee will be in bed all-day during a “flare up,” but Facebook shows him playing golf.
These are just a few of the strategies that employers can use to combat FMLA abuse. For further ideas, an experienced employment attorney can provide you with valuable guidance.