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Intermittent FMLA Leave Lends Itself To Potential Employee Misuse, Lawyers Warn

Monday, April 14, 2014

By Genevieve Douglas  

April 7 --Few aspects of the job give human resources professionals a larger headache than administering intermittent Family and Medical Leave Act leave, but failure to properly account for the time off can leave employees free to abuse the benefit.

HR professionals can either combat the abuse up front with proper FMLA policies and procedures, or they can deal with the fallout, which can include damaged workforce morale and terminations.

Intermittent leave is leave taken in separate blocks of time for a single FMLA-qualifying reason. Examples of intermittent leave include leave for occasional medical appointments or leave taken several days at a time spread over a period of six months (such as for chemotherapy). Pregnant employees can take intermittent leave for prenatal examinations or for periods of severe morning sickness. FMLA regulations specify no minimum increment of intermittent leave, though an employer may limit leave to the shortest period of payroll time, as long as that period is an hour or less.

FMLA leave abuse has always been a significant concern for employers, Jeff Nowak, a partner in the Chicago-based law firm Franczek Radelet PC, told Bloomberg BNA April 4. However, intermittent FMLA leave, typically taken for chronic health conditions such as migraine headaches or bad backs, lends itself to abuse because it is very difficult to track, he said.

According to data from the Society for Human Resource Management, two-thirds (66 percent) of 610 surveyed HR professionals have reported challenges resulting from chronic abuse of intermittent leave, including morale issues for employees who have to cover for their absent co-workers. Additionally, 80 percent cited the tracking and administration of intermittent leave as the most difficult activity.

The surveyed HR professionals also noted that intermittent leave tends to be associated with medical conditions that are hard to prove, such as migraines.

Getting Ahead of the Problem

According to Nowak, employers need to do a better job when administering leave, so that there is no opportunity to misuse the leave once it is granted. Managers need to be trained to recognize an employee's need for leave and whether it's covered by the FMLA.

Specifically, managers should ask the reason for the absence, Nowak said, and if the employee identifies a particular condition, that should be noted.

While HR professionals may be concerned about violating the Health Insurance Portability and Accountability Act (HIPAA) by asking medically specific questions, Nowak asserted that asking for specifics can be done when dealing with FMLA leave. “Employers can ask about medical conditions without intruding into medical health issues,” he said.

Nowak recommended HR departments use leave of absence request forms to track what specifically is happening with any particular employee. Call-in policies and procedures are also important for managing an employee's use of intermittent FMLA leave, he said.

While the employee is on leave, employers should use medical certification and recertification to their advantage, Nowak said.

If there are absences that seem suspicious, such as a lot of Mondays and Fridays, or that don't seem to go with the doctor's diagnosis, medical recertification can help HR figure out exactly what is going on, he added.


Lawful video surveillance of employees may be one of the only ways to stop FMLA abuse, attorney Dana Connell said. “There's no right in the FMLA to be left alone,” he added.  

 


Medical recertification, however, may not enable an employer “to catch an employee red handed,” Nowak said. Instead, he said, it allows the employer to show the individual that it is keeping track of the leave, which hopefully will curb the behavior.

Surveillance of Employees

In terms of catching employees in the act of fraudulently taking FMLA leave, an attorney told Bloomberg BNA that video monitoring of the employee may be the best option.

Lawful video surveillance of employees may be one of the only ways to stop FMLA abuse, Dana Connell, a shareholder in Littler Mendelson's Chicago office, said in an April 2 interview.

According to Connell, video surveillance is an option that has been gradually and quietly used by employers to check up on employees using FMLA leave. In part, he said, this is because there are few alternatives.

Lawful surveillance means the employer may hire a third party to videotape, without audio, any activity of the employee in public, Connell said. Such activity, he said, could include the employee mowing his lawn, working on his house or going on some sort of trip. “There's no right in the FMLA to be left alone,” he added.

Connell warned, however, that employers should not immediately seek to terminate an employee for FMLA leave abuse. Even when in possession of video evidence, he said, the employer could still be at risk for litigation related to FMLA interference or retaliation.

Still, Connell said, termination essentially warns the rest of the staff that such abuse of FMLA leave policies will not be tolerated. “That is a great message to send out to employees,” he said.

Nowak cautioned that the cost and time taken in conducting video surveillance may not be worth it to employers. “In the end, they will be spending a lot of money in addressing a situation that may not necessarily bring closure to the case,” he said.

Abuse Outed on Social Media

Meanwhile, employers may not to have to resort to stalking employees on FMLA leave, since a growing number of workers are outing themselves as cheaters by posting pictures or videos of their activities to social media while they are supposed to be incapacitated with a chronic condition.

For example, a registered nurse in Michigan was fired prior to her return from FMLA leave taken to recover from lower back and leg pain after co-workers discovered Facebook photos of her vacation to Mexico and other posts suggesting she could walk and stand for longer periods than she claimed in her FMLA leave request. A district court ruled against the employee's claims of FMLA interference and retaliation (31 HRR 159, 2/18/13).

Nowak said these types of cases are increasing.

Co-workers who are picking up the slack for the employee on leave are more likely to report the abuse, he said.

According to Nowak, these situations can be a trap for employers, however, because the knee jerk reaction is to find the picture and automatically terminate the employee. In such instances, it is critical that employers investigate the matter to not only confirm what they are seeing on social media, he said, but also to get the employee's side of the story.

 

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bna.com

To contact the editor responsible for this story: Simon Nadel at snadel@bna.com

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