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Nine Tips for Curbing the Risk of FMLA Abuse in 2016

By Erin D. Schilling

As we head into 2016, it is a good time to review and revise leave and certification policies under the Family and Medical Leave Act (“FMLA”), to limit the risk of FMLA abuse by employees.  Below are nine tips to consider:

  1. Conduct an FMLA Audit. Identify FMLA abuse concerns from managers. Give policies, practices and forms to legal to review to make sure your company is following best legal practices.
     
  2. Enforce consequences if the initial certification is not returned within 15 days. All medical certifications are required to be returned within 15 calendar days (unless the leave is unforeseeable and it is not practicable to do so). If the employee fails to return the certification, the employer may deny FMLA leave so long as the employer has advised the employee in writing at the time of the employer’s request for the certification of the consequence of failing to return the certification on time.  Be sure this is enforced uniformly.  
     
  3. Second (and third) opinions. Unfortunately, sometimes an employee’s health care provider will sign off on fraudulent leave requests. In that situation, an employer has the option to seek a second opinion at its own expense. If there is a conflict between the first and second opinions, the employer may require the opinion of a third medical provider at the employer’s expense.
     
  4. Require periodic updates. Managing FMLA leave is easier when employers maintain a line of communication during leave. The regulations allow employers to require “periodic” updates from employees while on leave regarding their intent to return to work, so long as the company communicates this obligation to the employee. Consider implementing a requirement that employees update the employer on their intent to return to work every 30 days.
     
  5. Call-in policies. Implement a policy requiring employees to call-in for time off (including intermittent FMLA leave) in a certain manner. Enforce consequences for failure to follow such policies.
     
  6. Re-Certifications. The FMLA regulations generally allow employers to obtain re-certifications every 30 days, but employers may request them sooner if an employee requests an extension of FMLA leave, the circumstances contemplated in the certification have changed (for example duration or frequency of absences), or the employer receives information that casts doubt on the employee’s need for leave. While an employer may have to wait longer to obtain a re-certification if the duration provided on the previous certification is longer than 30 days, an employer is able to request a re-certification at least every six months.
     
  7. Pay. The FMLA regulations make clear that employees (including exempt employees) need not be paid for periods of FMLA leave, even for partial days. 
     
  8. Consider using a private investigator.  There have been numerous cases where courts have found for an employer when they uncovered abuse through use of a private investigator.  
     
  9. Consider seeking advice of counsel. When in doubt about how to proceed with an employee’s questionable request or exercise of leave, seek advice of counsel. Missteps can be costly and subject employers to claims of interference and retaliation.