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One most-challenging issues facing employers is the fishy use of leave by employees under protection of the Family and Medical Leave Act (FMLA).
The FMLA has been costly to businesses. It has led to productivity issues and disruptions in scheduling and expenses.
Widespread employee abuses have exacerbated employer challenges. Abuse of the FMLA is so rampant, management everywhere is naturally suspicious.
According to the Department of Labor’s web site, the FMLA permits 12 weeks of leave if an employee works a 12-month period.
However, the leave is unpaid. And it’s for the employer who has 50 or more workers within a 75-mile radius of the work site.
Employees can use accrued paid leave such as vacation and sick days. Employers may require workers to exhaust their paid leave before taking leave under FMLA.
Three reasons why employees can get leave under the FMLA:
- For a serious health issue of the employee or family member.
- Reasons pertaining to military employment or to care for a member in military service.
- The birth of a child, to bond with it or the placement of a youngster with your employee either for adoption or foster care.
The abuse is difficult to prove under the FMLA criteria. Even just for hinting at employee abuse, companies have been hit with employee claims of either FMLA obstruction or retaliation.
However, if employers can show the FMLA leave is used for fraudulent purposes, they can legally defend themselves against employee complaints.
But that’s not always the case.
Unpredictable courts
Courts have ruled adversely on technicalities.
For instance, when employers have terminated employees after taking FMLA leave but didn’t use it for that purpose, companies have lost in court.
In other words, courts have ruled that when a company has suspected and proved FMLA-leave abuse, the firing did not hinder the employee’s rights.
Even when employers have hired private investigators and obtained proof from the employee’s friends or social media in order to prove fraud, courts have ruled in favor of employees.
Precautions
So, you should get legal counsel and demonstrate considerable care and respect before challenging employees on their claims.
Before approving leave or challenging abuse, you should also monitor submitted information using Department of Labor forms.
Be cautious before approving and scheduling an FMLA leave.
You are legally permitted to request a doctor’s certification about the need for a leave. You can also ask for new medical certification in advance of each FMLA year.
If you’re dissatisfied with an opinion, you can request second or third opinions.
For intermittent leave, some employees have chronic conditions and certifications. So, try to plan in advance for leave schedules.
You can’t refuse leaves, but you’re on sound legal ground if you attempt to plan in advance.
Do your best to anticipate the duration and frequency of intermittent FMLA leave. You can insist on a diagnostic prediction of when a leave will be justified. Until you get such doctor estimates, you can delay approval.
Certifying intermittent leave requests
Specificity matters. Inquire about the employee’s specific situation. A medical certification can only pertain to a serious medical situation. Note: Don’t inquire about the person’s general medical situation.
Adhere to time frames for employee responses to your request for certification. Allow the employees a minimum of 15 calendar days to respond with the documentation.
If the paperwork is not complete, inform your employee in-writing why it’s insufficient. Then, give the employee seven days to provide the necessary information.
If you suspect something is amiss with a certification and the need for a leave, then investigate.
You are allowed to contact the employee’s doctor for clarification. Note: Do not allow the employee’s direct supervisor to contact the physician.
Otherwise, it’s OK for people such as your HR representative, other top managers or third-party administrators.
If you’re not convinced about the veracity of a certification, you can insist on another opinion and compensate for it. Don’t use a physician with whom you work.
Choose a doctor who is totally independent. In the event of differing opinions, you can get a third opinion and make it a mandatory opinion.
From the Coach’s Corner, here are related sources:
Avoid EEOC Legal Hassles over Unpaid Leave Requirements — You might want to review your current human resource policies. The Equal Employment Opportunity Commission has continued to push employers on unpaid leave under the Americans with Disabilities Act.
13 Management Tips to Solve Employee Absenteeism — Absenteeism causes migraines for a lot of bosses. Obviously, your company will make healthier profits, if you don’t have an absenteeism problem.
How to Smoothly Manage Your Employee Vacation Schedules — Depending on the size of your staff, managing around your employees’ vacation schedules can be a thorny issue. That’s especially true for a small operation. With just a few employees, it can be difficult to keep everyone happy and to cover the workload.
Why Companies Fall into the Management Lawsuit Trap — Small and many big companies are ripe for EEOC complaints. The majority of lawsuits targeting management usually stem from a half dozen poor practices. You’ll get into trouble using these six bad practices.
Nothing surprises me. I’m in management.
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