Think Like a World Cup Goalie to Avoid the Paralysis of FMLA Abuse

by Franczek Radelet P.C.

world_cup_soccer_ball_2014If you’re anything like me, you’ve been swept up in the excitement of the World Cup over the past couple of weeks. However, now that we have entered the Round of 16, one thing leaves me both fascinated and unsettled about the game: how the art of penalty kicks can decide which team advances and which one goes home.

Think about it: a soccer player kicks a ball from 12 yards out towards a goal that is 24 feet wide by 8 feet tall.  The ball typically travels about 70 miles per hour. As ESPN’s Sport Science reports, if a goalkeeper waits to move until the instant the ball is kicked, stopping a penalty kick that arrives in roughly 400 milliseconds is physically impossible to stop. This is why a goalie literally has to guess which way a player is shooting and head in that direction.

As I watched Brazil defeat Chile and Costa Rica defeat Greece this past weekend in penalty shots after regulation and overtime couldn’t settle the score, my mind wandered to the goalie.  What if I were in his shoes?  Would I lunge right or left?  How often would I leap left or right?  And how high would I jump?  Or even worse, would I remain a pathetic soul stuck in the middle, paralyzed by the odds?  Indeed, as ESPN again reports, professional goalies stop a mere 22% of penalty kicks.  That percentage would be a dismal showing in almost any other sport.

But if I remained paralyzed in the middle, my chances of stopping that brazuca would be next to nil.

So, What Does a World Cup Goalie Have to do with the FMLA?

When it comes to combating FMLA abuse and staying compliant with the FMLA, do you remain stuck in the middle, paralyzed within your own goal?

  1. Target intermittent leave abuse. At every conference I attend and in the feedback during every presentation I give, the woes of intermittent leave abuse top the list.  Employers want to do something to fight FMLA abuse, but many remain paralyzed at the thought of fighting it.  Let’s keep the goalie’s success rate in mind and catch 22% of FMLA abuse, which is far more often than the zero you may be catching now.   Start now by following up on incomplete and inadequate medical certification, using second/third opinions and re-certification, and use lawful means to engage the employee’s health care provider about the employee’s serious health condition and need for leave. We have provided tips for doing so in previous webinars we’ve conducted (click here and here).
  2. Maintain effective call-in procedures and obtain critical information during the intake process. Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be. If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible. In your FMLA policy, also make clear how you expect your employees to communicate with you regarding the need for leave of any kind, and ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play.  When you improve your intake process, you are in a better position to assess the need for leave and ward off FMLA abuse.
  3. Conduct an FMLA audit to improve your ability to combat FMLA abuse and to comply with the law. How many times have you committed yourself to actually updating your FMLA policy, forms and practices to ensure they are legally compliant? Now, do it!  As we have reported, DOL on-site audits are becoming the norm in the FMLA world, and the DOL branch chief heading up FMLA compliance already has called 2014 a pivotal year for audits and enforcement. I speak from personal experience that our DOL friends are looking for (and expecting) compliant policies, forms and practices. A small investment now will save you even more money down the road. Promise.

Don’t be the goalie stuck in the middle of your FMLA goal.  Set a good foundation, carefully study your employee as they try to kick one past you, and take a leap.  Whether left or right, take a leap.  You’re not going to ferret out FMLA abuse every time.  But you will soon enough.  And it will be rewarding.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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