Human Resources News & Insights

Slam the brakes on intermittent FMLA abuse: 7 tactics

‘Tis the season … for FMLA abuse. We’re currently in the peak of intermittent FMLA abuse’s high season. But there are ways to help make sure employees are taking leave for a medical reason – and not just to go to the beach.

Since 2000, FMLA intermittent leave requests have skyrocketed 150%, according to the Employment Policy Foundation.

One reason: Employees have gotten craftier at gaming the FMLA system.

The time to fight back is now. Here are seven ways you can pump the brakes on intermittent FMLA abuse:

  1. Insist on reasonable notice. Under the FMLA, employees are required to give their employer at least 30 days notice before taking FMLA leave, if the leave is foreseeable. This covers planned medical treatments for the employee or his/her FMLA-covered family member, as well as leave for the birth or adoption of a child. If the leave isn’t foreseeable (like in cases of medical emergencies), you can insist employees give you notice as soon as is practicable — usually within one or two days. If employees fail to follow these rules, you can deny FMLA leave. Simply reminding employees of these rules can cut down on abuse.
  2. Get second and third opinions. If you doubt the validity of a leave request, you can require a second or even a third opinion. If you insist on a third opinion, you have to abide by it.
  3. Don’t be afraid to discipline poor performers or policy violators. FMLA leave doesn’t excuse employees from meeting the requirements of their jobs or from abiding by company policies. If employees aren’t hitting their performance goals, discipline them according to your code of conduct. And if you require employees to call in prior to missing work, you can require those on FMLA to do the same.
  4. Transfer employees. You can transfer an employee whose been approved for foreseeable leave to another position that better accommodates his/her need for leave, as long as it offers the same pay and benefits. If employees know they could be moved, they’re less likely to feign an illness.
  5. Require leave to be taken during off hours. It’s OK to have a policy that states foreseeable, scheduled intermittent leave should, when possible, be scheduled during non-work hours. Just make sure your policy spells out the consequences for not abiding by this requirement.
  6. Count FMLA and sick leave concurrently. It’s OK to require an employee to exhaust paid leave time while exhausting FMLA leave. But this practice must be clearly explained in your company policy. If employees know they’ll also be burning paid time off, they’ll be less likely to abuse FMLA.
  7. Pay attention to patterns of absences. If you notice an employee is always taking unscheduled FMLA leave on the same day, like a Friday or Monday, it’s smart to ask for re-certification.

Adapted from “Beer, brats and FMLA Intermittent Leave, ah summertime has arrived,” by Lisa Baiocchi, a labor and employment law attorney in the Milwaukee office of Arnstein & Lehr.

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  1. Does anyone have any suggestions for how to handle a certification for migraines that says “he has migraine headaches. It is impossible to predect when these will occur. It could be daily for 2 weeks or 3x/year. His average has been 2x/month.”
    I just recieved this yesterday and have not yet sent a designation notice.

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