Ways Employers Can Derail The FLMA-Leave Abuse Train

by Pepper Hamilton LLP

A version of this article was originally published in the October 2013 issue of The HR Specialist. It is reprinted here with permission.

As the holiday season draws near, employers are likely to see an increase in employee requests for time off. Employers should carefully monitor employees who are on or seeking leave under the Family and Medical Leave Act (FMLA) to make sure they are not misusing the generous protections offered under the statute. Below are common struggles observed by employers who have employees on FMLA leave and ways to combat FMLA abuse in the workplace.

“I don’t think the information provided by the doctor counts as a serious medical condition.”

Employers struggle with what they can and can’t ask employees who request to take leave for their own medical condition. Employers can require employees to submit a medical certification completed by the employee’s health care provider that supports the employee’s request for leave. A complete and sufficient certification will include the date on which the condition giving rise to the need for leave began; a description of the employee’s medical condition, such as the symptoms, diagnosis, or any treatment regimen; information as to why the employee cannot perform essential job functions and the duration of the condition for which leave is sought.

Employers who have reason to doubt the authenticity of the medical certification may contact the health care provider to verify that the information on the form was completed by the person who signed the document. The employer may also contact the health provider to understand the meaning of a response contained in the medical certification. Finally, the employer may also require an employee to obtain a second opinion, at the employer’s expense, and a third opinion if the first two opinions differ.

“My employee on intermittent leave refuses to provide advance notice for days off.”

Employees on intermittent leave mistakenly believe they have a free pass to take unscheduled days off without approval by the employer. This is untrue when the need for leave is due to planned medical treatments for the employee’s own medical condition, or the condition of a family member or covered service member. The frequency and duration of treatment should be included on the medical certification. The federal regulations also require employees to make a reasonable effort to schedule treatment so as not to disrupt the employer’s operations. Employees must also consult with their employers prior to scheduling treatment in order to work out a schedule that best suits the needs of the employer and the employee. Employers are permitted to initiate discussions with employees who fail to consult with their employers about treatment schedules.

In some circumstances, employers may transfer employees to other positions that may be more accommodating to the employer and the employee’s treatment schedule. The new position must be of equivalent pay and benefits, and may not be seen as a demotion or any other adverse employment action.

“My employee on intermittent FMLA leave seems to take off every Friday and Monday.”

Many employers observe trends where employees on intermittent FMLA schedule absences every Monday or Friday. Employers who suspect employees are using FMLA to get a jump start on the weekend are encouraged to review medical certifications previously submitted by the employee to determine whether the duration or frequency of the leave comports with the information provided by the provider. If the information in the certification departs from the observed absences, the employer may request that the employee submit recertification or speak to the employee’s health care provider.  Employers can provide the health care provider with a record of the employee’s absence pattern and ask if the health condition is consistent with the pattern.

“I asked my employee to work weekend and overtime shifts, and she presented me with a doctor’s note excluding her from these shifts.”

Employees seeking to avoid these scheduling demands may obtain a doctor’s note legitimately exempting them from these requirements. Employers who doubt the validity of these notes can push back by requiring the employee to submit completed medical certifications that include the requirements previously described above. If the employee fails to submit certification forms within the time required under the FMLA, or the certification is incomplete, the employer may deny the request and treat absences from scheduled shifts in accordance with its own attendance policies.

“I suspect my employee requested FMLA leave to avoid being disciplined.”

Another trend in FMLA abuse concerns employees who request FMLA leave when they fear they are about to be disciplined for legitimate, performance-related problems or misconduct. Employees mistakenly believe that taking FMLA leave will provide them with an added level of job protection. Employees on FMLA leave, however, have no greater right to reinstatement or to other benefits and conditions of employment than other employees who are out on other types of leave or who are continuously working. Courts have held that an employee who requests FMLA leave will have no greater protection against termination for reasons unrelated to FMLA leave than she did before taking or requesting the leave. This means that if an employer intends to discipline an employee for conduct that took place prior to learning of an employee’s need for FMLA leave, the employer may still proceed with the disciplinary action. Notably, the employer will have the burden to show that it would have disciplined the employee regardless of whether the employee sought FMLA leave. Courts will scrutinize closely any adverse employment actions that are taken in close temporal proximity to a request for medical leave. The takeaway: It is essential that the employer can establish that the decision to discipline was made prior to the request for FMLA leave in order to properly defend any future retaliation lawsuit.

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.

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