Strategies for dealing with FMLA abuse

Posted by Lori A. Clary on October 25, 2011

When we speak with employers, one of their top concerns is dealing with FMLA abuse.  This concern arises most often with employees who are certified for intermittent FMLA leave due to their own serious health conditions.  When the serious health condition is something like migraines, back pain, depression or some other condition susceptible to episodic flare-ups, employers can be left with little to no warning as to employee absences.  Add to this the fact that some – not all – employees on intermittent FMLA leave view that status as an attendance free pass and the level of aggravation for employers increases.

Thankfully, there are strategies employers can use to better manage employees with intermittent FMLA certification.  These strategies require diligence and strict compliance with the FMLA’s provisions and regulations, but they can be a valuable tool in decreasing the loss of productivity and uncertainty associated with managing employees on FMLA leave.

  1. Insist on complete and sufficient medical certification.  The range of information provided on FMLA medical certification forms is vast.  Too many forms, however, are returned to employers with key information missing.  Or, the form includes vague and ambiguous information.  For instance, the expected duration or frequency of the employee’s absences is listed simply as “as needed.”  When you receive such a form, exercise your right under the FMLA to obtain a complete certification that includes sufficient information to allow you to assess the situation.  Employees are entitled to seven calendar days in which to cure any deficiencies.
  2. Seek authentication and clarification when appropriate.  If you have reason to believe that an employee’s certification was not, in fact, completed by a health care provider, the FMLA authorizes employers to have a health care provider, a human resources professional, a leave administrator or a management official who is not the employee’s direct supervisor to verify whether the health care provider signed off on the certification.  In addition, if you cannot read the handwriting on a certification form or do not understand the meaning of a response, those same individuals may ask the health care provider to explain the handwriting or the meaning of a response.  You may not, however, seek additional information not required by the certification form, and all HIPAA protections must be observed.
  3. Require recertification.  As most employers know, the FMLA allows employers to require employees to recertify FMLA leave on a periodic basis.  If the minimum duration of the serious health condition is less than 30 days, employers may seek recertification every 30 days in connection with an absence by the employee.  If the minimum duration of the serious health condition is between 30 days and six months, the employer may seek recertification after that minimum duration expires.  In any event, an employer may request recertification every six months in connection with an employee absence.  What some employers don’t know, however, is that they can request recertification more frequently in some circumstances.  For example, if there is a significant change in the circumstances described by the certification – e.g., the certification form says the employee will miss one to two days once a month, and the employee has missed three days on three occasions in one month – the employer may seek recertification.  In addition, if the employer receives information that casts doubt on the employee’s stated reason for the absence, it may also seek recertification.
  4. Enforce absence call-in procedures.  The courts have consistently upheld an employer’s right to require employees who are using FMLA leave to follow the employer’s absence call-in procedures.  This means requiring employees to call in within the appropriate time period (unless it is impractical to do so) and notifying the appropriate contact person of the absence and its FMLA status.  Failure to comply can be the basis for consistently applied disciplinary action.
  5. Investigate suspicious FMLA patterns.  It’s not for nothing some refer to the FMLA as the “Friday-Monday Leave Act.”  If you begin to notice suspicious patterns of FMLA use, it may make sense to investigate exactly what the employee is doing with the time off.  For instance, in a recent case out of the federal court for the Northern District of Ohio (Tillman decision.PDF), an employee’s manager noticed that the employee had a pattern of taking Fridays, Saturdays, and days adjacent to holidays as FMLA absences.  In addition, although the employee’s intermittent leave was intended to address unforeseen flare-ups of his back condition, the employee frequently gave notice of his need for intermittent FMLA days off weeks in advance.  On one occasion, the employee informed his supervisor that, if he ended up on evenings, he was letting his supervisor know in advance that he would be using a FMLA day.  The employer hired a private investigator, interviewed the employee (who acknowledged that he was not incapacitated every time he took FMLA leave), and ultimately terminated the employee due to his FMLA fraud.  The employee sued claiming FMLA interference and retaliation.  The court ruled in the employer’s favor on summary judgment, finding that the employer had enough information before it to form an honest belief that the employee was abusing his FMLA status.  In another case decided by a federal court in Illinois (Illinois Department of Corrections Decision.PDF), an employer’s decision to discipline an employee for using his intermittent FMLA leave for an unintended purpose – i.e., to attend a court hearing date and a long-scheduled doctor’s appointment for which the employee gave no advance notice to the employer – was also upheld.  That court held that the employer’s actions were justified based on the employer’s honest suspicion that the employee was abusing FMLA leave.

Following such procedures won’t eliminate all headaches related to intermittent FMLA leave.  But they will allow you to better manage an unwieldy situation to reduce abuse and improve productivity and morale.

There's still time to register for McDonald Hopkins' Labor and Employment Law Seminar

Posted by Lori A. Clary on October 24, 2011

On November 3, 2011, McDonald Hopkins’ labor and employment law attorneys will present their annual seminar, Life Cycle of the Employment Relationship:  The Lay of the Land and How to Navigate It.  This all-day seminar will focus on hiring the right talent, protecting your company’s assets through the use of employment agreements, addressing data security issues, managing the employment relationship, and effectively parting ways with employees who are no longer a good fit.  A cocktail reception will follow.

Although McDonald Hopkins is pleased to offer this seminar free of charge to our clients and friends, space is limited.  To register, click here.  We hope to see you there!

EEOC to Employers Via $20M Verizon ADA Settlement: Can you hear me now?

Posted by George Asimou on July 12, 2011

The EEOC announced on Wednesday July 6, 2011 that it had settled a nationwide class disability discrimination suit with Verizon for $20 Million – the largest ADA settlement in EEOC history.  The EEOC filed suit in federal court earlier this month alleging that Verizon’s “no fault” attendance policies mandated “that when an employee accumulates a designated number of ‘chargeable absences’ an employee is placed on a disciplinary ‘step’ and additional ‘chargeable absences’ during such step period result in the placement of the employee in the next step, which has more serious consequences, up to termination.”

The EEOC noted that such policies made no exceptions for disability-related leaves, which is contrary to the EEOC’s enforcement position that one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) are violative of the Americans with Disabilities Act.  The policy did exempt FMLA leave.

The Verizon settlement, which also includes a consent order in which the EEOC will supervise Verizon’s revision of its attendance policies and its training of management, is just the latest step in an ADA enforcement campaign that we have reported on previously.

Employers are well-advised to review their leave policies to ensure compliance with ADA requirements.

EEOC on ADA: One rule -- no boundaries

Posted by George Asimou on June 21, 2011

The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C.  The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.

A few notes:  Vandalism_clock_Wikimedia.jpg   

  1. Employers are well advised to review the leave sections of their handbooks to ensure that disability leave policies are generally open-ended, providing that leave requests be evaluated on a case-by-case basis, with a disclaimer that such leaves cannot pose an undue hardship to the business.  Fixed period disability leave policies should be used with caution and in consultation with legal counsel. Employment handbook provisions are intended to be your Exhibit A in litigation, not the plaintiff’s direct evidence of discrimination. 
  2. The EEOC’s enforcement position re-affirms some longstanding first principles of ADA compliance.  The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.  What’s reasonable and what’s an undue hardship is a case-by-case analysis – and certainly not subjectively at the employer’s discretion.  Think less of a sprained ankle or headache for your business and more a broken ankle or a stay-in-bed migraine. 
  3. The EEOC’s enforcement position further complicates decision-making as to leave requests involving the so-called Bermuda Triangle (i.e., the intersection of the Family and Medical Leave Act [FMLA], the Americans with Disabilities Act [ADA], and workers’ compensation laws).  The FMLA’s (limited) sex appeal lies in providing some certainty as to the duration of medical leave.  In most circumstances, its 12 weeks, tops.   The EEOC’s enforcement position requires employers to determine if an employee’s “Serious Health Condition” under the FMLA presents a “Disability” under the ADA, then to act accordingly in making a determination as to whether leave might extend beyond 12 weeks.   “Welcome to Bermuda!” the EEOC seemingly tells employees with disabilities “Stay a while – the weather’s great!”

The EEOC’s enforcement statistics forecast decidedly stormier weather for employers.   The most recent data for Fiscal Year 2010 show a marked increase in disability claims, topping 25,000 for the first time since records were kept, an increase of 15% from Fiscal Year 2009.  Regardless of whether you’re an FMLA employer or not (while the FMLA generally applies to employers with 50 of more employees, the ADA generally applies to employers with 15 or more employees), take care to act with judicious flexibility in determining how reasonable to be in extending leave as an accommodation under the ADA. 

(h/t)   Workplace Prof’s Blog.