As much as intermittent FMLA can help employees who really need it, there are always those who try to game the system. Here are some tools that help HR and managers fight abuse.
1. Certification form
The most important tool in HR’s arsenal: the medical certification form.
Some employees abuse FMLA by getting a carte blanche certification for intermittent leave and then taking it whenever they feel like taking a Monday or Friday off.
To fight back, HR needs to make sure employees’ doctors get specific about the frequency and duration of leave they need. If a worker returns a form with phrases like “intermittent” or “as needed,” you can send them back to the doctor to get more details.
In one recent court case, an employee turned in a form that listed the frequency of her condition as “completely unpredictable.” The company asked for a more detailed form, but she never turned it in and wasn’t offered leave.
She sued, but the court sided with the company (Cite: Tome v. Harley Davidson Motor Co.).
A possible sign of FMLA abuse: An employee needs leave for doctor’s appointments — that happen to be scheduled every Friday afternoon.
In that case, the company can ask her for a certification form explaining why the leave needs to be taken on Fridays. If there’s no medical reason, HR can ask her to reschedule.
Another way to make sure leave is only taken by those who really need it: Ask for recertification as often as you can.
The law allows companies to ask for new paperwork every 30 days, or more often if:
- details about the employee’s need for leave change (like if he or she needs off more frequently, or for a longer duration each time), and
- the employer gets information that casts doubt on the legitimacy of the employee’s need for leave.
For example, if an employee gets approved for intermittent leave, takes sporadic absences for a while, but later starts taking time off every Friday afternoon, the employer can ask for a recertification.
4. Check in
Some companies have policies requiring HR reps to call employees at home on FMLA leave to make sure they aren’t using it as a substitute for vacation time.
Those policies have held up in court — in fact, some courts have even given the OK to companies that hired private investigators to keep an eye on suspected leave abusers.
One warning, though: Companies need to be careful about how they use the information they gather. In one recent case, an employee took FMLA, and a co-worker who lived on the same block saw him outside building a porch.
He was fired for taking unnecessary leave — but he took the company to court and won. Just because he was well enough to do some construction didn’t necessarily mean he could still do his job (Cite: Weimer v. Honda of America Mfg., Inc.).