Adviser Winter 2019-20 LeadingAge New York Adviser LeadingAge NewYork Winter 2019-20 | Page 8

This Is
COOL
Insurance Made Simple
Curbing FMLA ...
(Continued from page 6)
Strategies for Curbing Abuse
The most effective way to protect against FMLA leave abuse is establishing well-
thought-out policies, including specific requirements, detailed investigations when
warranted and clear penalties for violations. Consistent enforcement is also key, as that
will help your case if FMLA leave must be denied or disciplinary action is required.
Here are some strategies for curbing FMLA leave abuse:
1. Require employees to submit medical certification – or a form drafted by your
organization – to corroborate their need to take FMLA leave to care for a covered
family member with a serious health condition or for the employee’s own serious
health condition. Scrutinize the internal form or medical documentation to ensure
it is fully and accurately completed. If the submitted materials are incomplete
or insufficient (as established by the policy above), send the employee a written
request for additional information and specify a time period for its return to you.
Train managers to watch for trends, like frequent Monday and Friday absences,
that may indicate FMLA leave abuse. Identifying such a pattern could necessitate
that the employee resubmit medical certification for those absences.
2. Empower managers to ask reasonable questions when an employee reports an
absence. Managers should be trained to identify whether the conditions of an
absence would qualify an employee for FMLA leave. Prior to acting, legal counsel
should be consulted.
3. Depending on state law, consider prohibiting, in writing, the ability of employees
on FMLA leave to work other jobs and still qualify for leave.
4. You do have the option, if you suspect abuse of FMLA due to a serious health
condition, to require the employee to submit to an independent medical exam at
the employer’s expense.
5. Although you may not ask the employee to provide a medical note each time he/
she is absent due to FMLA intermittent leave, you may require the employee to
provide recertification within the bounds of the law. As part of the recertification
process, an employer may provide the health care provider with a record of the
employee’s absence pattern and ask the provider if the serious health condition and
need for leave is consistent with such a pattern.
6. Update your FMLA policy to include that when an employee requests intermittent
leave, he/she must advise you of the reasons why the leave schedule is necessary
and the schedule of treatment. Under the new federal regulations, the employee
must consult with you and make a reasonable effort to schedule the leave so as not
to unduly disrupt operations.
7. For intermittent leave, the employer may transfer the employee temporarily
to an available alternate position for which the employee is qualified, provided
the position has equivalent pay and benefits, and which better accommodates
recurring periods of leave than the employee’s regular employment position.
Legal Considerations
FMLA leave abuse is a difficult subject for employers, since many rightfully fear
triggering costly settlements or judgments. Employers may be wary of pursuing FMLA
leave abuse and disciplining employees when there’s a chance of being hit by litigation.
(See Curbing FMLA on page 8)
7
Adviser a publication of LeadingAge New York | Winter 2019-20