Human Resources News & Insights

FMLA: 13 ways to stop intermittent-leave abuse

Intermittent FMLA leave has rapidly become the No. 1 nightmare for supervisors everywhere. A top employment lawyer offers a multi-step approach that’ll help companies legally discourage abuse.

It starts with adopting a formal policy on intermittent leave, making a company-wide decision that you’ll track all such leaves and communicating the policy throughout the company to all employees and supervisors, according to George Yund of the Frost Brown Todd law firm in Cincinnati.

Yund spoke at the recent Labor & Employment-law Advanced Practices (LEAP) symposium in Las Vegas.

An effective intermittent leave policy would include at least 13 measures, Yund says.

Here’s a rundown:

  1.  Notice: Always insist employees provide the required notice once they learn of the need for leave, and coordinate with supervisors that such leave be designated as FMLA leave to make sure that employees start burning their FMLA allotment – nothing goes uncounted. You can require 30 days’ advance notice for “foreseeable” leave, or as much notice as “practicable.”
  2.  Dock their pay: FMLA leave is always unpaid, and even for exempt employees, you can make deductions from their wages for a few hours’ intermittent leave without automatically converting them to overtime-eligible non-exempt employees.
  3. Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must be within 75 miles of a worksite with at least 50 employees.
  4.  Don’t give it prematurely: Make sure employees have gained at least a year’s seniority with your company, and that they have worked at least 1,250 hours during the previous 12 months. If not, they’re not eligible and requests can be denied.
  5.  Deny parental leave: Even though intermittent leave is FMLA leave, you can deny it for parental care. No intermittent leave is available for childbirth or adoption purposes.
  6.  Require medical certification: Leave must be medically necessary. You can insist on medical certifications, and annual recertifications if needed, and ask about specific reasons for leave, its duration and dates of treatment, both from the healthcare provider (HCP) and the employee. Attach a job description to the medical certification form. And you can request second and third opinions if you have doubts, a tactic under-used by employers that can send an effective message to others. To avoid disparate treatment charges, ask for medical certifications in all cases, but that doesn’t go for second and third opinions.
  7.  Transfers: You can transfer employees to other (more undesirable?) work if intermittent leave is too disruptive in their normal positions.
  8.  Count overtime: You can count overtime missed in calculating the total 12-week allotment (and pro-rate it for part-timers).
  9.  Count it all: You can use increments used for other leave in totaling leave used, up to one-hour increments.
  10. Use longer increments: You can use longer increments if the employee can’t join the job in middle of shift (e.g., flight attendants).
  11.  Offer paid leave: You can provide paid leave for longer increments (so they’ll start burning those entitlements), but you must offer the option of unpaid intermittent leave.
  12.  Count the holidays: You can count any holidays falling within any leave taken toward employees’ total 12-week FMLA allotment, to make sure they reach the limit sooner, and
  13.  Make ’em use paid time first: You can compel the use of paid leave first, so employees have to burn vacation before any unpaid FMLA leave.

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  • http://www.workforce21c.com Cynthia Calvert

    Employers should be careful if implementing these suggestions. A couple of the suggestions are likely to land employers in court; a judge may well view transferring workers on FMLA intermittent leave to less desirable positions or requesting numerous medical certifications as retaliatory actions. Several other of the suggestions are likely to undermine relationships with employees, leading to lower productivity and higher attrition. If you have a good exempt worker who regularly works more than 40 hours a week, why would you dock his or her pay for a couple of hours off to take a parent for chemo? How is that going to keep the employee engaged and productive and loyal? The advice about parental leave is also scary – I hope it was just sloppy writing. It is wrong to make the blanket statement that intermittent parental leave can be denied – intermittent parental leave cannot be denied where the leave is to care for a seriously ill child. Moreover, where an employee asks for intermittent leave to care for his or her healthy newborn or newly adopted child, the law may not require that the leave be granted, but it is still a good strategic move to work with employees to grant the request. Look at it this way: a parent is entitled to take off 12 solid weeks for the birth of a baby, which can be disruptive to a business. What if that parent, being a good and loyal employee, suggests to his or her employer that he or she instead take intermittent leave to provide greater continuity at work or finish a large project? It would be foolish for the employer to say no, forgoing the opportunity to have less disruption and risking losing the employee’s desire to put forth discretionary effort and maybe even losing the employee him or herself. The bottom line is that almost all employees at some period in their careers are going to be caregivers for a family member or are going to have their own medical issues, and those periods of time are small compared to the length of a career, and the message that employers want to be sending is not distrust and punishment as the lawyer in this piece suggests but rather support and respect in order to foster employee engagement.

  • MMAN

    Someone correct me if I am wrong on this one, but in whatever increments you pay employees (i.e. 15 minute increments) is how a company is supposed to calculate FMLA leave, right? I mean, you can’t use a more stringent method of calculating leave than you do in your pay systems. I think I read that somewhere.

    Moreover, under the more recent ADAAA an extension of the leave from 12 weeks to let’s say 14 weeks can be a valid accomodation for those who have taken leave for a disability. Terminating employment even after the 12 weeks is up could be cause for a lawsuit and an employee could potentially win if in fact the organization terminated employment after 12 weeks when it was reasonable to believe the employee could have returned to work in let’s say 14 weeks for example.

  • HR in MD

    I have a question about number 3. Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must be within 75 miles of a worksite with at least 50 employees.

    I thought it was 50 employees with in 75 miles of each other, not within 75 miles of a worksite with 50 employees. Can anyone clarify this? We are very close to have 50 employees all with 75 miles of each other but not all in the same office.
    Thanks

  • RZP

    What do you do when the employee exceeds the certification limit? For example, they have been grated 16 hours per month, but regularly miss 60+ hours per month.

  • the little guy that works hard

    WHY WOULD YOU TORTURE GOOD BLUE COLLAR EMPLOYEES WITH THIS TYPE OF CUNNING AND DECEPTION? THERE ARE SOME OF US THAT ARE INJURED ON THE JOB, BUT DENIED WORKMEN COMP. JUST SO THE COMPANY CAN FAKE A CLEAN RECORD! YOUR DESIRE TO FREAK THE HARD WORKER OUT OF THEIR JOB HAS NO HONOR OR INTEGRITY SIR! I HOPE YOU NEVER GET HURT OR PUT INTO THIS SITUATION, BUT IF YOU DO; MAY YOUR OWN ADVICE TAKE YOU DOWN! WE ALL ARE NOT ABUSING THE SYSTEM. WE NEED IT TO RECOVER FROM DENTED HELP FROM OWE EMPLOYERS!

  • Tom W

    In my profession, the Railroad it’s abused to the point of being flat out blatant which allows for the individuals to work when they please. It’s rewarding for them because they stay home when the weather is bad or when a job comes up that actually requires work. They then make themselves available ONLY for the big money jobs so they make more money than those whom are always available and who don’t scam the fmla policy. The major railroads do nothing to enforce or monitor it and it’s no wonder what little moral we had is now gone. When we hired out we knew day or night it’d be on call good or bad weather and now guys like myself who still adhere to that way of life make on average thousands less per year than fmla person’s working whenever they feel like working. There’s gotta be a way to fix this without fear of legal action. When you lay off fmla and your posting on FB partying it up or doing whatever else while we’re at work…come on. Out loud in front of management they brag about it raining next week and it’s fmla time. JOKE…people will abuse anything if allowed to.

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