Human Resources News & Insights

5 ways to stop FMLA abuse dead in its tracks

rules-made-to-be-broken

FMLA abuse: With all of the laws out there protecting employee rights, many employers feel it’s a problem they are powerless to stop. 

As a result, they don’t closely question employees about their FMLA requests. That can be very costly.

For example, here’s what can happen when you put employees on the honor system: One employer revealed that as much as 30% of its workforce is absent on any given day — and the majority of those absences are FMLA-related.

Employment law attorney and FMLA expert Jeff Nowak says figures like that are a clear sign the employer has fallen victim to FMLA abuse. The employer in question was one of his clients.

To help employers stuck in situations similar to his client’s, Novak has offered up this list of measures companies can take to significantly reduce FMLA abuse:

1. Make employees hand in leave request forms

While it’s true that an employer cannot deny a worker FMLA leave if the person puts the employer on notice of the need for leave, simply requiring the employee to actually write out his or her request often deters the person from taking unnecessary absences.

This can also be an effective strategy for cutting down on all types of absences.

2. Create and enforce a call-in policy

If you have a policy that says something like, “All employees must call in one hour before their shift starts to report an absence,” it’s generally OK to require employees out on FMLA leave to abide by that policy.

If employees out on FMLA leave fail to call in before they are absent, it’s OK to deny FMLA leave — as long as there are no unusual circumstances.

There’s a good chance that if an employee knows he/she must call in every day, the person may think twice about abusing their FLMA privileges.

3. Keep the lines of communication open

Even if you don’t have a formal call-in policy, it’s important to maintain contact with employees on FMLA leave. An effective strategy could be something as simple as having supervisors call staffers that are out on FMLA leave once a week.

Nowak says employers are often amazed at the results maintaining contact with absent employees can have when it comes to reducing FMLA abuse.

4. Keep those certifications coming

The best way to keep employees honest? Require them to certify their absence and seek recertification when circumstances change (like an employee needs an extra day a week of intermittent leave).

Remember, once you inform an employee of the need to obtain a certification you must give the employee 15 days to get the certification and return it to you — unless it’s not practicable under the circumstances and the employee is making a good faith effort to return it to you.

5. Give managers/supervisors a list of questions to ask all employees when they call in sick

Employers have the right to ask employees certain questions about why they need leave, as long as they don’t ask for genetic information (a.k.a. family medical history).

Here are some questions Nowak says are worth asking employees every time someone calls in absent:

  • What is the reason for the absence?
  • What part of the job can’t you perform?
  • Will you see a doctor?
  • Have you been absent for this condition before? If so, when?
  • When did you first learn of your need to be absent?
  • When do you expect to return to work?
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  • FMLA abuse is certainly a problem. However, this statement “With all of the laws out there protecting employee rights, many employers feel it’s a problem they are powerless to stop.” can be distorted. Most employees are unaware of even the most Basic Employee Rights and employers routinely violate or don’t enforce those rights.

    One answer to curtailing FMLA abuse would be employers performing internal audits of the overall treatment of employees and the workplace culture. If the environment is a minefield of bullying, harassment, discrimination, low morale, productivity and of course attendance are sure to follow.

    • Jim

      I don’t know what planet you are from but the opposite is true. FMLA abuse is more of a problem than employer abuse. FMLA employee will use FMLA to take days off when they are tired, need time to get ready for a date, or just want to leave early, among other issues and Employers are afraid to do anything about it becuase they don’t want to be hastled by the Feds. I know people who call FMLA late because they wake up late and even call fmla to work another job. I actually know people who have a calendar set up that shows when they can take FMLA time off…and they do..to the point of 20% of the scheduled staff daily!

  • When the fmla abuser is smart, and knows what they are doing, the employer IS powerless to stop it. It is a quickly spreding virus, and the people who are already “low integrity workers” learn quick by example. This is a obviously growing epidemic, and has to be stopped!!

    Employees with integrity

  • Art

    I work for the transportation industry and we receive FMLA call off for full days as well as partial.
    > When a employee calls off for the day, he/she does not mention FMLA so an absence is given, but later down the line HR excuses it as FMLA.

    > If the employee does not say FMLA when calling off, should it not count as a reular absence?
    > Should the employee be asled if it is a FMLA absemce eben though it’s not mention?
    > Other employees hear that an employee having FMLA states that he needs to go on a trip and will just call off FMLA so as not to get an absence. FMLA abuse at it’s best.

    How can this be challanged?

    Art

  • HR in GR

    Art:
    Your Employer should be requiring medical certification and notification of eligible leave 30 day prior to the leave or whatever time is reasonable. If this information is not received, then the FMLA should not be granted.
    If the employer knows the leave would be FMLA eligible they need to count it as such and begin with the PPW regardless of the EE asking for FMLA (i.e, EE is in the hospital, out with pneumonia, parent had heart attack, etc.)
    If people are “taking a trip” as you stated, this could easily be rendered if the ER follows the procedures that are put in place as I mentioned above.
    It still isn’t easy, but it certainly does help…..

  • Jane

    Well this fmla is bullshit . People abuse it everyday . The saddest thing is they will ruin it for the ones that really need it. Hired in at Chrysler and was told by union Stewart to get fmla that they advise every employee to get on it because of the strict attendance policy that Chrysler has. And this is allowed by the government it’s a joke the lazy people that just want a day off and no point use it all the time . Your hurting companies and it’s sad to say the companies that are just in time for the big three can close shop because of it . My friends work had 12 people call on shut down Chrysler for over a hour and cost THIER company hundreds of thousands because of the call in for fmla didn’t have people to run the line had to be trained . Is this acceptable .

  • Erin

    What if someone is hiding behind their diabetes? I know someone who has type one and calls out frequently because their levels are “off” claiming either too high or too low but during the week there is talk about things going on during the weekend. There isn’t always a drs note. And management doesn’t always ask.

    • theresa

      Your last line is the answer. Not verifying the reasons for absence is just telling them that anything goes.

  • Rolyat D Taylor

    What if the employees HR rep is changing not desigenated illness or a dentist apt. Or vacation used for a cold or flu to FLMA. LEAVE when actually employee is on FLMA for say Copd and not a root canal. Just to exhaust FLMA leave. I am going through this issue and can prove my time off is being altered. I never ck FLMA unless its Copd related. But somehh when I get the approval. The Reason for leave has changed from “dentist app” not related to reason for FLMA leave to “dentist app. Being removed and FLMA being checked as reason for time off request. AM I MISSING SOMETHING? I am being honest about not abusing FLMA but they are adding days to FLMA to exhaust employees leave under FLMA sooner. And employee has paper trail to prove HR DEPT is actually doing this for reasons personal to employee filing grievance against a bullying supervisor? ???? I need help

  • Jim Hamilton

    I work for the Postoffice and fmla is rampant. We have two employees who are habitual abusers with multiple claims. They are letter carriers and junior carriers at that. Every time they call out people get forced to pick up the slack on their open routes. This has been going on for yrs! They laugh about it. When questioned or if they hear people complaining they wrote false statements claiming racism. HR showed up promptly for that and the statements were false and unfounded. Nothing happened to those two employees for their false statements. Now people let them pretty much come and go unchallenged for fear of reprisals in the form of lying and threat of lawsuits against them. Please karma come around in a big way

  • Bella Alger

    I’m a senior FMLA specialist. Amongst FMLA, I process various state leaves as well. This article is very flawed and it brings into perspective exactly why employers outsource state and federal benefits to a company like mine. Some of the things above are within violation of FMLA, ADA and HIPPA laws.

    Here’s some examples:

    1) FMLA protects an employee from being subject to the attendance policy, therefore as an employee missing work under FMLA would still be eligible for the Honor System because the absences cannot be held against him/her. FMLA does not protect poor job performance therefore if the employee is not able to preform their job, they may be subject to the metric system.

    2) When having a pending or approved FMLA on file, an employee does not have to tell you why (s)he’s taking fmla, whether or not (s)he will see a doctor, how long (s)he plans on missing, and YOU MAY NOT request a doctor’s note. All an employee has to say is that (s)he is missing work under fmla- care for self or family member- absence is for incapacity or treatment. Supervisors are not preview to any kind of medical information. The only people preview to employee’s medical information is top HR reps.
    Because flare ups are unpredictable, an employer does not have the right to ask somebody when (s)he plans on returning to work. As long as the employee is not exceeding the allowed frequency, they may take as much time as needed off from work.

    3) In the event an employers notices a pattern of abuse, medical recertification can be requested every 30 calendar days. An employee must be very careful when asking an employee to recertify so frequently because in the event there is no true pattern of abuse, the employer can be fined by the government and the employee can sue for discrimination.
    Business needs being impacted negatively due to an employee missing unplanned time off is not grounds for recertification.
    I.e. If an employee is going to appointments 3 hours per day, 3 days a week and the Medical Certification states it, the employer asking for recertification due to abuse is wrong and I would typically advise supervisors or HR not to.
    Most common recert requests are for the Friday/Monday/day after holiday sick folks. Even then, all the doctor has to do is just change the signature date and refax the forms.

    4) An employer can enforce a reporting timeframe, however the employee must be provided ample time to report each missed day, I.e. 1 day in arrears. Also, the employer can have a policy of a 60 minute minimum timeframe prior to shift starting for the employee to inform (s)he will not be coming in. Please note this does not apply to emergency situations. The reporting timeframe or submission grace period for leave no longer applies to somebody who is unable to report time for themselves. I.E. coma.

    5) YOU CANNOT CALL EMPLOYEES WHILE THEY ARE OUT ON LEAVE TO SEE OF THEY WILL RETURN TO WORK…. under any circumstances!!!!!!!
    Following up with somebody while they’re on leave, whether it’s intermittent or continuous, is absolute harassment. Human Resources may contact the employee to discuss return to work plans, only after the leave ends. Please note that employees need to be given a minimum of 15 days to extend a continuous leave.
    6) If an employee is spotted at a mall, restaurant, water park etc while on FMLA does not necessarily mean the person is abusing. Some parents take children to restaurants after going to the doctor, some anxious/depressed patients might be encouraged by their therapists to somewhere fun after a session to aliviate the anxiety or depression.

    The list goes on…. but honestly, it’s nearly impossible to deny FMLA to people because the ale itself is so gray. Did you know that pregnant women do not even need to see a doctor to go on fmla?!

    Employers can protect themselves by having a strict reporting timeframe, having a rolling back calendar and most importantly… OUTSOURCE this way they won’t get sued.
    This article got every single point wrong.