Prevent FMLA mistakes, abuse with educated management
When the Family and Medical Leave Act of 1993 was signed into law it was the first labor-friendly bill enacted by the Clinton administration during a period when the Democratic Party held control of both houses of the legislature and the executive office. Subsequently, 11 states and the District of Columbia have enacted similar state legislation, many of which are more restrictive on the employer than the federal law.
The FMLA was created primarily because United States demographics shifted during the decades between World War II and the latter half of the 20th century from single-income homes to homes where both parents held outside jobs. Prior to the act, there was no provision for a leave of absence that protected the employee's job status if an employee needed more leave resulting from illness or to care for a family member than what was available from accrued sick time or vacation. The employee ran the risk of losing his or her job.
In 2009, the act was expanded to provide 26 weeks per year for a military family to care for a veteran with a serious injury or illness. In that same year, hours of service eligibility requirements for flight crew members were modified.
While most employees are honest and take only FMLA leave to which they are entitled, the act is sufficiently complex as to provide opportunities for mistakes and abuse.
According to Stephen J. Meyer, CEO of the Rapid Learning Institute, based in Eddystone, Pa., "One major slip-up by employers is taking an adverse action against an employee who comes back from FMLA leave."
Sometimes it's easy to reintegrate a top-performing employee when he or she returns. However, what happens when an employee has been temporarily replaced by a better performer, or when the returning employee had performance issues prior to taking leave?
For example, the supervisor of the IT department takes leave for an operation that requires him to be gone for six weeks. During his absence, a subordinate employee is temporarily promoted to run the department. The subordinate does a much better job; the department runs smoother and is more productive.
When the supervisor returns, the manager decides to put him in a lesser role. The courts will almost always side with the returning employee if the employer cannot document that the adverse action would have taken place even if the employee had not taken FMLA leave.
Employers should become particularly aware of the provisions of the act in the case of adoptions or foster care. Adoption takes time and frequently involves travel in addition to court appearances, meetings with social workers, doctors, birth mothers, etc. Employees are entitled to leave for all of these and more.
The regulations are clear regarding time off both before and after a child is placed in the employee's home. The process and paperwork can take significant time, and an employer must provide adequate leave without complaint.
In the case of adoption or foster care, the standard medical certification form isn't appropriate and should not be used. However, the employer may ask the employee to provide some form of certification from the agency or attorney handling the adoption or foster care that covers at least the following three issues:
1) Verification that the employee is in the process of adopting.
2) Description of the reasons for leave.
3) Estimation of how long the process will take.
Phenix Investigations Inc., a national private investigation firm, has seen a rise in creativity by employees who used the act to provide supplemental income or take extended vacations. If the economy has forced an employer to reduce staff or pay, an employee may claim FMLA leave to protect his position while working another job.
The company also has seen a rise in FMLA claims when hunting season opens. The resulting increase in overtime compensation for remaining employees and lost productivity can be a significant burden on the employer.
A little investigation can produce positive results. Kathleen M. Paustian, senior counsel for employment matters for the Las Vegas office of Gordon & Rees, LLP, recalled, "One of my favorite instances of abuse of FMLA intermittent leave occurred when an employee of a client of mine claimed an inability to drive to work when experiencing her alleged migraine headaches. The supervisor became suspicious of the employee's pattern of calling in sick with migraines on Mondays. One Monday when she had called in sick, the supervisor dialed her cellphone and started a breezy conversation asking where she was and what she was doing. In the spirit of the phone call, the employee forgot herself and replied she was driving the kids around town running errands. That was the end of that employment."
While the law itself provides few rules to curb abuse, it does allow the employer to require medical certification to validate the need for FMLA leave.
According to Phenix, "... Many of the covered illnesses are chronic medical conditions that wouldn't necessarily prevent the employee from continuing to work. In these cases, employers need to use surveillance services to document the employee's activity while they are on FMLA leave."
When an employee is observed abusing FMLA, employers have the right to terminate the employee.
Paustian cites FMLA documentation and administration as an area where many employers make mistakes.
"I had a case in which the employee was terminated for being absent from work for several months," she said. "She sued, claiming the employer had failed to give her the FMLA paperwork to submit to her doctor. The employer's HR person had, on two occasions, handed the employee the form for her doctor to complete and had followed up with phone calls to the employee while she was out.
"Unfortunately, the employer had no written proof of giving the form to the employee," said Paustian, who cannot emphasize enough the importance of documentation.
According to Meyer, another serious employer slip-up is assuming that minor ailments do not qualify for FMLA leave. For example, is the flu a serious health condition?
"That depends," he said. "The law says that a 'serious health condition' is one that requires three consecutive days of leave. A number of courts have ruled that an ailment like the flu can be considered severe."
The key word is "consecutive" days. While intermittent leave is covered in another provision of the law, minor illnesses that don't result in consecutive days of absence may not qualify for FMLA.
Dan Neville, a professional in leave administration in Oregon for the past eight years, has noticed an increase in FMLA claims that occur during disciplinary actions and performance issues.
"When the writing is on the wall and the employee is about to receive discipline up to and including termination, there is a rise in 11th hour stress-related claims," said Neville. "All of a sudden the boss is harassing, causing an increase in stress that is the root of productivity problems."
Neville, who now works for a large health care company, said, "This puts doctors in a precarious position. They don't want to say anything illegal, but they don't want to lose their patients either."
A Las Vegas physician who has asked that his name be withheld has seen an increase in questionable claims. "Patients seem to believe that if they tell their doctor they have some stress-related complications, they have a free ticket to an FMLA claim." He believes this may be the result of employees not realizing what the definition of a serious health condition really is.
As a result of the delicate administration requirement of FMLA, Neville has seen an increase in the number of employers who outsource their leave administration. Many of the provisions of the act are complex and must be handled with extreme care to avoid lawsuits. If an employer cannot justify the monetary and intellectual costs of dedicating resources to ensure that internal staff are sufficiently trained and experienced in handling FMLA claims, the employer will turn to outside experts whose business it is to administer the act for them.
On the Society of Human Resource Management website, Paul Falcone, vice president of human resources, stated, "Abuse of intermittent FMLA leave unfortunately has become a serious workplace disruption in many organizations. Although well-intentioned, the FMLA's legal protections have been exploited by an overly aggressive plaintiffs' bar and workers who sometimes lack the necessary work ethic to meet the day-to-day challenges of the workplace."
Paustian added, "The area in which employers seem to have problems is in administering intermittent FMLA leave. This is an instance in which the employer really needs to 'err on the side of caution' and in favor of the employee whose doctor has approved intermittent leave. Ironically, however, intermittent leave is the FMLA provision which employees seem most often to abuse.
"But, employers are not without recourse. If the employee's condition has changed, the employer can ask the employee to obtain recertification from the doctor to verify that intermittent leave is still necessary for the employee. Plus, the employer should meet with the employee and explain that intermittent leave is to be taken in a manner least disruptive to the operation. For instance, if an employee works Tuesday through Saturday, needs to take time off intermittently for rehabilitation treatments, and the company's busiest days are Friday and Saturday, the employer can ask the employee to take time off for rehab on Tuesday, Wednesday or Thursday."
Unfortunately, many managers will tolerate a worker's abuse of FMLA because they do not want to engage in legal struggles over what may seem a minor problem. However, when you consider the effect on the morale of other workers, lost productivity and potential risk of losing the effectiveness of company policies, the cost can be substantial.
So, what is an employer's best defense against such abuse? The defense is to take an aggressive stand with solid company policies and follow the letter of the law. FMLA provides very specific requirements that not only the employer, but also the employee must follow.
With the appropriate legal review by a law firm experienced in FMLA, companies must make certain their leave policies can pass muster with the act. Once they are in line, employees should be required to follow the policy and any violations should be fully documented. As is the case with all company policies, employers must document all violations, even minor ones by "good" employees, or those policies could be thrown out in court as either discriminatory or ineffective.
Some good rules to include in your company leave policies include:
n Require employees to use regular paid leave (sick, vacation, paid time off, etc.) before their FMLA leave kicks in.
n Require employees to submit medical certifications within a reasonable, specific number of days.
n Make sure FMLA leave is calculated on a rolling 12-month period, not a calendar year.
n Require employees to schedule appointments or medical procedures outside of work hours where possible.
n Require the employee to provide a certification from his physician that he is fit for duty when he returns.
n Include a provision in your policies that prohibits an employee from working a second job while on FMLA leave.
n Require complete medical certification forms and make sure the answers on the forms are clear. If not, require second and/or third opinions.
While not all employees abuse the act and many employers are good at administering it, the FMLA road can be littered with mistakes and abuse. The best defense is educated management, adequate investigation and good legal advice when questions arise.
