FMLA abuse: With all of the laws out there protecting employee rights, many firms feel it’s a problem they’re powerless to stop. As a result, they don’t closely question employees about their FMLA requests.
But that can be very costly.
1. Use written leave request forms.
First things first: You can’t deny leave to workers if they give you a verbal notice. But you can ask them to put their leave request in writing.
Requiring that extra step formalizes the process – and when employees realize there’s a paper trail, that discourages them from taking leave they don’t need.
2. Question them, then question them some more.
Some employers think the FMLA regulations don’t allow them to question workers about their medical condition or their need for leave.
But guess what? That’s not true.
Under the FMLA, you have a right to get info from an employee about why they need leave.
Use this short questionnaire next time a worker calls in an absence:
- What’s the reason for the absence?
- What essential functions of the job is the worker unable to perform?
- Will they see a doctor for their injury or illness?
- Have they taken leave for this condition before? If so, when?
- When did the worker first learn he or she would need to be absent from work?
- When will they return to work?
3. Call-in procedures still apply
Don’t forget: You can deny FMLA leave if workers fail to follow your 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.
4. Check in periodically
Keeping the lines of communication open can go a long way in preventing FMLA abuse.
Checking in on employees periodically to see how they’re doing is legal – as long as you don’t ask employees to do any work while they’re out.
5. Medical certification is key
A medical certification form is your primary tool against FMLA abuse, so require workers to certify their absence and seek recertification when circumstances change (like if an employee needs an extra day a week of intermittent leave).
Once you inform an employee of the need to obtain a certification, you must give him or her 15 days to get it 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.
6. Surveillance? Yes, but be careful
Many courts have been supportive of using surveillance when employers think FMLA abuse is rampant.
But be careful: Turning to surveillance too soon when other avenues haven’t been explored – such as checking in with the worker frequently – might make a judge question your motives if an employee sues you.
7. Update your FMLA policy and procedures
Auditing your FMLA policy and procedures probably isn’t your idea of a good time, but making sure your policies and procedures are in line and up to date can prevent any FMLA errors on your end.