Everything About FMLA Abuse

Everything About FMLA Abuse

  • On June 11, 2015

Handling FMLA Abuse

The Family and Medical Leave Act (FMLA) was created with the noblest of intentions – particularly the desire to allow employees the chance to balance their personal needs with their professional responsibilities.
Unfortunately, many people take advantage of these intentions and abuse FMLA leave for non-medical and non-family reasons. When it comes to establishing the validity of FMLA leave, the federal law places a heavier burden on the employer than the employee, charging companies with the task of determining the presence of FMLA abuse.
In fact, employees do not directly have to state that they are taking leave under the law. They merely have to provide enough information that an employer could reasonably conclude that FMLA leave is warranted. For example, if an employee missed work after suffering a major heart attack and receiving treatment at a hospital – the employer would likely conclude that any absences due to the situation fall under the auspices of the FMLA.
The specter of FMLA abuse shouldn’t hang over every request for time off. Employers need to individually assess each situation and employee. However, employers can get in trouble for not being consistent with all employees requests. an employee with a spotless attendance record should be treated the same as someone with a checkered past.

Assessing a Leave Situation

An employer should approach a suspicious leave situation by asking the employee to provide enough information to determine if the FMLA applies. This request can include asking for medical certification from the employee’s physician, hospital or healthcare provider.
Since some employees could withhold necessary information of their personal medical situation, several factors can indicate to an employer that a leave is valid under the FMLA. First, an employee might qualify if he or she misses at least three consecutive days of work. An employee also might qualify if they have a chronic medical ailment that includes debilitating flare-ups. Qualifying situations can also include family members with a serious medical condition or if a female employee is suffering from pregnancy complications.
An employer should also consider how a request for leave was made. If an employee calls in and says they are feeling sick, then standard company attendance policies should be applied.
Employers should know that they are not breaking any laws by simply trying to determine why their employees cannot work. To get relevant information, employers can use a number of general questions that can be asked when employees call in to report an extended absence.
HR or Leave representatives should find out the reason for the absence, when the employee first recognized a leave of absence would be necessary and if they have a chronic condition. If possible, an employer should also find out what job duties the employee can’t perform and whether he or she is seeking care from a healthcare provider. The employer should also find out when the person is expecting to come back to work.
After gathering all this information, the employer should then review that employee’s attendance record for a pattern of absences that a requested FMLA leave might fall into. For example, if the employee always requests for leave on every Thursday and Friday a leave request that fits this pattern should be viewed with suspicion.

Investigating an Employee

If an employer does suspect FMLA abuse, the company or organization is justified in conducting surveillance of the employee in question or hiring an investigator to conduct an investigation.
According to Bloomberg BNA, video monitoring of the employee may be the best way to look into FMLA abuse. The video could be used to show that a person who is restricted from bending over at work has no problem doing just that while performing yard work. Of course, investigators should follow all laws, including privacy laws, while conducting surveillance.
FMLA abuse expert Dana Connell told Bloomberg BNA that video evidence of an employee performing restricted activities is not a “smoking gun” and does not mean that an employer is protected from legal action should they immediately terminate their employee.
In addition to surveillance and video recording, employers can also track an employee’s social media profiles for evidence they may be on vacation or unusually active for their alleged medical condition.
Be Vigilant, yet Careful
The FMLA does not shield employees from their work responsibilities or company policies. However, employers should refrain from trying to jump on a ‘gotcha’ moment and immediately fire someone the second a shred of evidence pops up. Employers should try to give their employees every last chance to explain themselves or rectify any issue related to an FMLA leave request. Providing an abundance of goodwill toward an employee will only strengthen the employer’s stance should the situation escalate into legal proceedings.

 

FMLA Abuse

  • On January 7, 2015

When are you Abusing the FMLA?

Abuse of FMLA leave is a major concern of employers and HR representatives. But what qualifies as FMLA abuse? When is it most likely to take place? And what can employers and HR representatives do to curb abuse of FMLA?

What qualifies as abuse of FMLA?

The Family Medical and Leave Act (FMLA) is a federal law that requires certain employers to provide employees who qualify with unpaid leave, job protection, and continued health care coverage for up to 12 weeks. The FMLA applies to all employers who are public agencies and to private companies that have or had more than 50 employees working for them for 20 or more workweeks either during the present or the past year. Employees are eligible for FMLA leave if they have been working for the same company for a year or more as of the date of the requested time off, and if they completed 1,250 hours of work in the past 12 months. Administrative, vacation, sick, and personal leave do not count towards the total number of necessary work hours. Employees who qualify can take FMLA leave for any of the following reasons:

• The employee has developed a serious medical condition and requires some time off to convalesce;

• A family member of the employee has developed a serious health condition and requires that the employee act as their caretaker;

• The employee has recently had a child, adopted a child, or placed their child in foster care; or

• An employee’s spouse, child, or parent has been called to active duty or is on active duty in the National Guard or Reserve supporting a contingency operation.

So, which situations count as FMLA abuse? Well, it’s pretty straightforward: taking leave for any reason other than the covered situations listed above and a few exceptions is abuse of FMLA. Employees have requested FMLA leave and then used the time to go shopping, work a second job, or take a vacation. Even employees, who use FMLA leave to take care of a sick in-law or friend, are technically violating FMLA policies.

When is FMLA abuse most likely to take place?

Often, FMLA abusers take their leave in bits and pieces, here and there. Part of FMLA policy is that it can be used intermittently. As you already know, employees are granted up to 12 weeks of unpaid leave under FMLA, but they don’t have to use the 12 weeks all at once. As one might imagine, this leaves room for employees to take several unauthorized 3- or 4-day weekends a year. In some cases, quite the opposite occurs: an employee takes a significant amount of time off for a real medical condition and then drags out their leave for several weeks after they actually could have returned to work. Unsurprisingly, when it comes to FMLA leave, employers’ imaginations can run wild about the real reasons behind an employee’s request for FMLA leave.

What can I do about FMLA abuse as an employer or HR representative?

There are several ways that employers and HR representatives can curb FMLA abuse in the workplace.

First, managers and supervisors can take steps to cultivate a workplace that prides itself on honesty and trust, and that includes the employer trusting an employee. Many employees are using FMLA leave for the reasons it was created, and denying FMLA leave can have seriously negative consequences for a company, from a decrease in morale, to lawsuits from disgruntled employees, to even promoting leave abuse because employees think their employer won’t believe them no matter what they say.

Second, set up a policy of consistently determining eligibility in a timely manner and certifying the reasons for the requested leave before granting it. Not only will this help to reduce FMLA abuse, but it’s also just a good habit. Make sure the employee actually qualifies for FMLA leave before granting it by evaluating the FMLA leave criteria. If the employee is requesting leave due to their own or a family member’s medical condition, ask for certification from their doctor and don’t be afraid to ask for periodic re-certifications, especially if the leave will stretch on for a significant amount of time (say, a month or more). If you’re really concerned that an employee might be attempting to use a minor illness or health condition for a few weeks off in front of the TV, you can always send the employee for a second or third opinion to a doctor, requesting that he or she evaluate the employee’s condition to see if time off work is really medically needed.

Third, keep up the communication. Make it your workplace’s policy that employees call in pre-defined intervals to let you know how they’re doing (or how their family member is doing), if anything changed, and when they’ll be returning to work. Keep the chats friendly, and don’t forget, you cannot ask them to do any work while they’re on FMLA leave. That would count as FMLA abuse by an employer.

Don’t be afraid to ask questions. When an employee approaches you about taking FMLA leave, he or she should be able to answer questions about whether or not they’ll be seeing a doctor for their condition, if this has happened before, when they knew they’d need some time off from work, and when they think they’ll be able to return. There are ways to ask questions without crossing any lines, and under FMLA, employers are allowed to ask certain questions about an employee’s request for FMLA leave. Asking questions is a great way to cut down on abuse, and to grant FMLA leave to employees who really need it.

 

 

 

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