FMLA Leave, Legitimate or Not, Can Create Headaches for Employers

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By Martin Berman-Gorvine

Sick leave under the Family and Medical Leave Act can be an administrative hassle for employers, especially when the time off must be taken intermittently.

“FMLA abuse is a very big problem,” Dana Connell, a shareholder in the Chicago office of management-side law firm Littler Mendelson, told Bloomberg BNA in a June 22 email. The toughest kind of leave to deal with? Connell said her law firm surveyed 1,229 in-house counsel and HR professionals in May and 65 percent said “intermittent FMLA leave taken in an unpredictable manner” is the most difficult type of employee request to accommodate.

In terms of FMLA abuse, Connell said there are “three tell-tale signs” that may indicate a problem. “The employee takes FMLA on a day that he/she could not get vacation or a personal day; the employee has a pattern of Friday and Monday absences; or the employer received complaints or tips from coworkers, directly or anonymously, that the employee is abusing FMLA.”

Jeff Nowak, partner and co-chair of the Labor and Employment Practice Group at Chicago-based management-side law firm Franczek Radelet P.C., said he sees some egregious examples of FMLA abuse. “In any given month, clients have called me to deal with employees who have taken FMLA leave to serve jail sentences, attend criminal court hearings, and travel to exotic locations,” Nowak told Bloomberg BNA in a June 22 email.

Gathering Proof

Employers can request certification of an employee’s need for FMLA leave, Steven Johnson, human resources coordinator of Health & Hospital Corp. of Marion County (Indiana), said. The Department of Labor offers prototype forms.

Full FMLA certification, according to Johnson, includes information on the medical facts and symptoms of the employee’s condition, including diagnosis, prescriptions, appointments, therapy, flare-ups, and the regimen of treatment, as well as information on the employee’s inability to perform essential duties.

HR will often have to contact the employee’s doctor or other health-care provider who completed a certification for FMLA leave if not enough information is provided, Johnson said.

“Employers should require recertification at regular intervals; if the frequency or duration of the absences changes significantly; if there is a pattern of suspicious absences; or if the employer receives information that casts doubt on the reason for leave,” Nowak said.

If HR suspects abuse of FMLA leave, the employee can be asked to get second opinions from other providers, Johnson said. He said word of these kinds of requests for more information gets around, which may discourage others from abusing FMLA leave.

Connell additionally suggested that employers ask employees requesting intermittent FMLA leave to fill in “personal certification forms,” that the worker alone signs off on, citing “the reasons stated in the pre-existing medical certification.”

HR can surveil the suspected FMLA abuser if recertification and other methods have been exhausted, to determine whether he or she is really working a second job or indulging in recreation when supposedly off sick, Johnson said.

Employee Attorneys Skeptical

Plaintiffs’ attorneys are skeptical that FMLA abuse by employees is really all that common. “I do not see widespread abuse of the FMLA,” Stephen Z. Chertkof, a founding partner at Washington law firm Heller Huron Chertkof & Salzman PLLC, told Bloomberg BNA in a June 22 email. “The FMLA was enacted to overcome employers’ resistance to providing leave for employee’s medical care or care of their family members.”

“The fear of employee abuse is overblown,” R. Scott Oswald, managing principal of The Employment Law Group, P.C., another firm that represents employees, told Bloomberg BNA in a June 23 email. “Very few people take leave, especially unpaid leave, unless they genuinely need to do so.”

Employers that work with employees in good faith are taking a “humane approach” that helps avoid both liability and retention problems, he said. “By contrast, employers that treat every worker as a likely malingerer are repaid with similar cynicism. It’s these employers that are at most risk legally.”

Oswald said employers should avoid showing favoritism in granting FMLA requests and shouldn’t “allow other factors to contaminate the FMLA process” like an employee’s recent performance or relationship with his or her manager. Also important, he said: “Don’t downgrade an employee’s responsibilities after FMLA leave and pretend that it’s substantially the same job. This sort of disingenuousness is a fast track to legal action. Remember: The ultimate arbiter here may be a federal jury.”

Johnson was speaking June 20 at the annual conference of the Society for Human Resource Management in New Orleans.

To contact the reporter on this story: Martin Berman-Gorvine in Washington at mbermangorvine@bna.com

To contact the editor responsible for this story: Tony Harris at tharris@bna.com

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