Special Report: Preventing and Catching FMLA Abuse

Is it better to swallow the costs of FMLA abuse than to risk ending up in court if you wrongfully challenge a legitimate claim? That’s the intimidating question many employers think they face given the skyrocketing number of FMLA lawsuits reported last year.

Data from the Administrative Office of the U.S. Courts indicates FMLA lawsuits increased by more than 26% in 2014.[1][2] While it’s for the courts to decide whether all those lawsuits are well-founded or spurious, the fact remains that FMLA abuse does exist and it’s bad for business.

GetFive asked FMLA expert Francine Esposito, a partner at the law firm Day Pitney LLP, for insight into how employers can prevent, identify and thwart FMLA abuse.

“This law has been around for 22 years, and you would think we would get the hang of it by now and it would be easy to administer this law,” Esposito says. “But administrating FMLA is incredibly complicated, and unfortunately, very often, employees abuse the rights they’re given under this law.”

Abuse can occur in subtle, hard-to-spot ways. A worker could suffer from intermittent migraines that just happen to hit on Friday afternoons during the summer. A unionized employee may come down with a serious health condition after exhausting his or her paid time off under the collective bargaining agreement. A worker could visit family outside the country, only to have a relative come down with a serious health condition while they’re visiting.

To combat FMLA abuse, employers must:

Know the basics of the law, including eligibility.

“Your employees may sue you if you don’t follow the law, so you want to make sure you understand the law and apply it correctly,” Esposito says.

One of the most important basics to grasp is eligibility. Did the employee work the 1,250 hours required to qualify for leave? Have they been with your company long enough? Have they already used up their entitlement? Is the employee in a remote office located more than 75 miles from your main location?

Employers with facilities in more than one state should also be aware of leave regulations in every state in which they operate. State laws vary.

Require notice.

The law requires employees to provide a 30-day notice to the extent that their leave is foreseeable. Some instances in which an employee claims their condition was unforeseeable may turn out to be something else upon closer examination, Esposito says.

For example, the employee with the sudden family emergency abroad likely booked his plane ticket months ago. Does the original return flight date happen to coincide with the end of the worker’s FMLA leave?

Be vigilant about certification requirements.

The law requires employees to provide employers with complete and sufficient certification supporting their need for leave. “Complete means forms are fully filled out with sufficient and specific information,” Esposito says.

Employees must provide certification withing 15 calendar days from a request. Once an employee is on leave, you can request certification every 30 days for open-ended leaves, and at the end of the time a health-care provider says an employee will need to be out if the employee asks for an extension.

Review health-care provider forms closely. It’s up to employers to ensure forms specifically include GINA safe harbor language, and state that health-care providers should not share any information beyond what the employee has authorized them to share. Scrutinizing the forms may also reveal signs of abuse. Are forms accurate, complete and sufficient? Is the form in any way suspicious? The appearance of two different handwriting styles, pen colors or white-out on a form may be a sign of abuse.

Know and use options for different types of leave or stay-at-work accommodations.

Full leave may not be the only option for a worker seeking FMLA leave. In some cases, a continuous reduced schedule or intermittent leave may be appropriate, but employees must still demonstrate the leave is medically necessary. Intermittent or reduced schedules may also work to an employer’s advantage; employers have the right to ask employees to schedule leave for treatments at a time that is least oppressive to their operation.

Sometimes it may be appropriate and acceptable to the employee to modify their job requirements. “Let’s say your employee has 10 essential functions of his job,” Esposito says. “He can do nine out of the 10. Now, technically, he’s entitled to FMLA leave, but if you offer to modify job requirements to allow him to forego function number 10 in order to stay on the job, he may agree to give up his leave.”

Employers should also have clearly defined and well-communicated notification policies. Supervisors should be educated in managing employee leave requests, and employers should be sure to have good legal counsel throughout FMLA claims administration.

Finally, Esposito says, be aware that even when you think you’re doing the right thing, the courts may decide otherwise. “A case came out in Louisiana that made me pause,” she says. The youngest child in a family of five kids had a health condition that prompted the father to request leave to care for that child. The mother was a stay-at-home mom caring for all the kids, but when the dad took off he didn’t take care of the sick child. He took care of the healthy ones. The employer discovered this and fired the gentleman. The courts said the law was intended to help families in time of crisis and ruled in the family’s favor.

“So even when you think you’re doing the right thing, you still may be legally liable,” Esposito says. “But it’s important to at least spot the issues.”

[1] https://www.iaml.com/blog/why-%E2%80%9Cepidemic%E2%80%9D-fmla-lawsuits

[2] http://www.law360.com/articles/630168/flsa-fmla-lawsuits-soaring-new-statistics-show

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