Most employers are aware of, and comply with, the requirement to include information about employees' rights and obligations under the Family and Medical Leave Act (FMLA) in employee handbooks or other written policy documents. However, employers often fail to take advantage of the opportunity to use written FMLA policies as a way to combat FMLA abuse.
Below is a list of seven provisions that employers should include in their FMLA policies if they are searching for tools to help limit such abuse.
- Require that all leave requests be in writing. All employees should be required to document their request for leave on a written request form and return that form to Human Resources unless there are unusual circumstances that prevent the employee from doing so. Requiring written leave requests helps ensure there is no misunderstanding about the type of leave being requested or the dates or circumstances giving rise to the need for leave. Requiring employees to put the leave request in writing also can make an employee think twice before making a fraudulent leave request.
- Require that FMLA leaves run concurrently with other types of paid and unpaid leave and require employees to substitute paid leave for unpaid leave, unless prohibited by state or local law. Although concurrent running of leave and substitution of paid leave provisions are subject to state and local laws, they are strong deterrents when it comes to curbing FMLA abuse. When employees know that they will have to use up their available paid leave time (i.e., vacation, sick time, personal leave, and so on) when taking FMLA leave, they are much less likely to use FMLA leave for illegitimate reasons. Additionally, if they do take FMLA leave, requiring concurrent running of leave and substitution of paid leave (when permissible) prevents employees from taking 12 weeks of unpaid FMLA leave followed by additional weeks of paid vacation or other time off.
- Inform employees that medical certifications and recertifications will be required. FMLA policies should describe when medical certifications and recertifications will be required and employers should make sure to require those certifications and recertifications whenever possible (i.e., for new leave requests, when the reason for leave changes, when leave is extended, when a new leave year starts, when the leave circumstances change, if there is a pattern of suspicious absences, if there is objective information that provides a reason to doubt the need for leave, and so on).
- Mandate strict compliance with call-in procedures. The FMLA regulations are clear that employees must comply with an employer's "usual and customary" notice and call-in procedures, absent unusual circumstances. For example, an employer's call-in procedures may indicate how much advance notice is required when reporting an absence, to whom the absence must be reported, what information must be provided regarding the absence, etc. Employees who do not comply with such procedures, and who do not have a justifiable excuse for failing to comply, may have their leave requests delayed or denied, so long as the call-in requirements are uniformly applied for other types of absences.
- Prohibit secondary employment while on leave. The FMLA regulations permit employers to have policies prohibiting outside or supplemental employment while on leave, so long as the policy is uniformly applied to all types of leave, not just FMLA leave. Courts have dismissed FMLA claims filed by employees who were found to be working at another job in violation of the employer's policy prohibiting other employment while on leave.
- Require employees to sign a certification regarding their absences. The FMLA prohibits employers from asking for a medical certification or doctor's note in connection with every FMLA absence unless the documentation is required by policy in order to use paid leave time that is being substituted for unpaid FMLA leave. However, employers may require employees to sign a personal certification or acknowledgment following each absence which confirms that the employee took the day off for a FMLA or other medical reason and acknowledges that the employee may be disciplined or terminated for providing false information to the employer. To avoid any claim that employees using FMLA leave are treated differently from other employees, the personal certification/acknowledgment should be required from all employees returning from any kind of medical leave (e.g., FMLA, worker's compensation, ADA, personal illness, and so on).
- Inform employees that second and third opinions may be required. Because second and third opinions are always obtained at the expense of the employer, second and third opinions are usually reserved for situations in which the request for leave is unclear or suspect for some reason (e.g., conflicting information has been provided regarding the reason for leave, the certifying health professional is not an expert in the field, the amount of leave requested appears to be inconsistent with the reason for leave, and so on). However, informing an employee up front that second or third opinions may be required puts employees on notice that suspicious leave requests will not automatically be approved by the employer.
By working with employment counsel to incorporate these provisions into existing FMLA policies, employers can ensure that they are taking full advantage of the tools available to limit fraudulent FMLA requests and FMLA abuse.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.