STOPPING ABUSE OF THE FAMILY AND MEDICAL LEAVE ACT

Most employers have been there: employees abusing leave under the Family and Medical Leave Act (FMLA).  But what can be done about it?  Here are a few tips that could stem the fraudulent use of FMLA leave in your company.

First, all employees should be required to sign the company’s FMLA policy.  This will confirm that all employees are aware of the employer’s workplace rules with regard to absences so he or she cannot later claim ignorance about the process for requesting leave.

Second, know the signs of potential abuse.  For example, employees continually requesting Fridays or Mondays off, or taking leave after being assigned a new position/title or new job responsibilities that they have expressed disappointment or concern about, may signal FMLA leave fraud.

Third, be a “stickler” for the rules.  Of course, an employer cannot interfere with legitimate FMLA leave, and it certainly cannot retaliate against an employee who requests or takes such leave.  However, an employer can make sure to obtain the necessary and mandated medical certifications and recertifications of serious health conditions, in order to determine whether the employee is eligible for FMLA leave

An employer can seek recertification if the employee requests an extension of leave, if the circumstances described by the previous certification have changed significantly, or if the employer receives information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

The employer can also request second and third opinions for employees whose certifications raise doubts as to the legitimacy of the leave request.

Another option that can be used by an employer, especially in the case of  intermittent leave, is to meet with the employee to reiterate call-in requirements, set expectations about the information the employee will provide when calling in an absence, and reviewing the company’s FMLA policy.

Of course, an employer must be careful to not explicitly state, or even imply, that the employee’s use of leave is considered illegitimate, is discouraged, or is being used to retaliate against the employee.  In addition, any such meetings should only take place at the human resources level, and should not be handled by mid-level supervisors, who may ask the wrong questions or say something inappropriate.  Mid-level managers, however, can be trained to identify potential FMLA abuse and report it to human resources.

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