The federal Family and Medical Leave Act, or FMLA, is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave—generally up to 12 weeks in a 12-month period—for certain family and medical reasons. It also requires that group health benefits be maintained during the leave. Employees are eligible for FMLA leave if they have worked for their employer for at least 12 months and for at least 1,250 hours over the previous 12 months, and they work at a location where at least 50 employees are employed by the employer within 75 miles. FMLA has been proven to have a positive effect on employee morale and absenteeism, but abuse of FMLA leave is a growing concern for employers.
FMLA abuse can be very costly to employers in terms of lost productivity. It also places additional burdens on those employees who must take on the responsibilities of the absent employee to keep up with workflow. The potential consequences for employers, both financial and operational, underscore the importance of monitoring employee use of FMLA leave and taking steps to prevent its abuse.
Let's take a look at some precautions employers can take to minimize FMLA abuse within their companies.
1. Conduct Annual FMLA Training for Managers. Managers and supervisors are typically the first line of communication for employees needing leave, so make sure managerial staff knows what types of circumstances qualify. At the same time, review attendance and leave policies and remind managers to maintain confidentiality when discussing leave with employees.
2. Carefully Determine Applicable 12-Month Period. An employer is permitted to choose any one of the following four methods for determining the "12-month period" in which the 12 weeks of leave entitlement occurs, so long as the alternative chosen is generally applied consistently and uniformly to all employees:
- The calendar year;
- Any fixed 12-month "leave year," such as a fiscal year;
- A "rolling" 12-month period measured backward from the date an employee uses FMLA leave; or
- The 12-month period measured forward from the date any employee's first FMLA leave begins.
3. Apply Attendance Policies Consistently. An employer's regular attendance policies apply to persons out on FMLA leave in the same manner as to all other employees, absent unusual circumstances. For example, if you require employees who are absent to call a specific person by a specific time, an employee taking FMLA leave because of a sudden emergency or an immediate need for intermittent leave is generally subject to these same reporting policies.
4. Require Medical Certifications to Support Need for Leave. Ask for medical certification to support the need for leave due to an employee's own serious health condition or that of an immediate family member. If necessary, you can also get a second opinion at your own expense.
5. Require Recertification for Continued Absence. In general, you can do this no more frequently than every thirty days.
6. Require Employees to Use All Paid Leave Prior to Taking Unpaid FMLA. If the terms and conditions of your normal leave policy permit, you may require employees to use all paid leave (such as sick and vacation leave), before taking unpaid FMLA leave.
7. Be Cautious When Permitting Intermittent Leave/Reduced Schedules. The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. Employers should be careful in their recordkeeping to ensure that no employee is taking leave beyond that which is legally required. Of course, certain types of planned medical treatment may require the use of intermittent leave or a reduced schedule, but the employee must make a reasonable effort not to unduly disrupt the company’s operations.
8. Notify Employees That You Require "Fitness-for-Duty" Certifications Upon Return From Medical Leave. Keep in mind that if you require a fitness-for-duty certification from one employee, you must require each similarly-situated employee (i.e., same occupation, same serious health condition) who takes leave for this condition to obtain and present certification from his or her health care provider that the employee is able to resume work.
Remember, an employee who fraudulently obtains FMLA leave is not protected by the law’s job restoration or maintenance of benefits provisions, and may be subject to disciplinary action. Employers should notify employees of their FMLA policies and the fact that FMLA fraud is grounds for disciplinary action. That being said, there are a number of detailed FMLA provisions that fall to the employer to understand and administer. To learn more about your FMLA responsibilities and to access related sample forms and policies, visit us online at HR360.com.