If there’s a term that makes executives and HR managers shudder, it’s got to be this: FMLA intermittent leave. Here’s a look at one effective tool for fighting abuse of this type of employee absence.
Numerous studies have identified managing intermittent leave as the “most difficult activity” facing HR professionals.
HR’s No. 1 approach to riding herd on this complicated problem: recertification.
The law gives companies the right to require employees on intermittent leave to provide updated certification of their medical condition every 30 days. But there are also scenarios that can trigger recertification, no matter what the time frame:
- The employee asks for an extension of leave
- The duration or nature of the illness has changed, or complications have arisen, or
- The employer receives information that casts doubt on the validity of the certification.
The first two scenarios are pretty straightforward. But the last one requires some judgment on the part of FMLA administrators.
The majority of the time, employers need a solid reason to ask for the new certification. Besides changes in the employee’s specific condition, there are other triggers.
Example: A worker who’s out with a back injury is seen bowling or engaged in some other strenuous activity. Suspicious patterns of absence are grounds, too: Why does the person who suffers from migraines always seem to have them on Fridays and Mondays?
HR can deal with the absence pattern question directly with the certifying physician. The written inquiry should include a copy of the person’s recent attendance record, and this query: Is the pattern of absences consistent with the employee’s medical condition?
An additional caveat on the 30-day rule: If an employee’s certification is specific enough (it says he or she will need X number of kidney dialysis sessions over a specific period of time, say), employers probably can’t ask for recertification until that time period is up.
Many companies just give employees FMLA certification forms that have boxes for their doctors to check. But employers can ask for more specific information. That includes:
- When did the condition start?
- How long is it likely to last?
- What is the definition of the employee’s condition?
- What treatment is required?
- Will hospitalization be necessary?
- And the most important question: Will this condition incapacitate the employee?
Another tip: HR can give the doctor a copy of the employee’s job description, or a list of the worker’s essential duties. That’ll give the physician a better context for answering the questions on the form.
Beware of GINA
One important consideration — Employers need to be very careful when asking for medical certification so they don’t run afoul of the Genetic Information Non-Discrimination Act.
Thus, it’s wise for companies to add some key language emphasizing that employees and their medical providers should not provide “genetic information” (a.k.a. family medical history) when responding to a request for FMLA certification.
The EEOC has suggested employers add the following statement on forms requesting health-related information from an employee:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.