The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid leave with the maintenance of group health benefits. Once the employee returns from FMLA leave, HR must restore them to their old job or an “equivalent job“.
With FMLA, employees have a better chance of maintaining an optimal work-life balance. The Act itself is gender-neutral and seeks to promote equal employment opportunities by eliminating gendered caregiver expectations.
In this blog, we’ll walk you through leave entitlement under FMLA, employee abuse of FMLA leave, safeguards against FMLA wilful violation and FMLA violations by employers.
Leave Entitlement Situations under FMLA
First, let’s define what is considered a “serious health condition” according to the FMLA:
- Incapacity for more than three days with continuing treatment by a health care provider
- Pregnancy or prenatal care
- Certain chronic medical conditions requiring multiple treatments
- A permanent or long-term condition for which treatment may not be effective
Now that that’s clear, let’s talk about what types of leaves employees are entitled to under FMLA:
- Leave for Employee’s Serious Health Condition
If an employee cannot perform their job due to any serious health condition, this can include pregnancy and prenatal care; they are eligible for FMLA.
- Leave to Care for a Parent, Spouse or Child’s Serious Health Condition
Employees are entitled to leave under FMLA to care for immediate family members with a serious health condition.
- Parental Bonding Leave
Employees are eligible for this leave type within a year of birth, adoption, or foster care placement of children.
- Exigency Leave
If an employee’s immediate family member is deployed or drafted into the military, they are eligible for FMLA leave to handle certain issues.
- Military Caregiver Leave
An employee can take upto 26 weeks of FMLA leave to be the primary caregiver for a family member who suffers from a service injury. The definition of a family member, in this case, can extend beyond the immediate family.
How does FMLA Abuse Occur?
It’s a running gag in the HR community that FMLA during the summer can quickly become the “Friday-Monday Leave Act”.
While FMLA should be given to employees in need, HR must also keep the best interests of the company in mind.
If you find yourself frequently answering “Yes” to the following, you may just have a major situation of FMLA abuse on your hands:
- Do your employees often take FMLA leaves before/after a long weekend?
- Are your employees taking intermittent FMLA without proper notice and certification?
- On being denied vacation requests are your employees applying for FMLA during the same period?
- Are your poorly performing employees applying for FMLA to delay the inevitable termination and maintain their healthcare benefits?
- Have you ever found your employee moonlighting at a similar job in another organization while on FMLA leave?
- Are your employees’ social media posts not aligned with their reasons for taking FMLA?
These are just some common scenarios that we were able to come up with but we’re sure there are many more situations that you may have faced. Reach out to us @HarmonizeHQ and let’s exchange stories.
How to Prevent FMLA Abuse?
FMLA Abuse Safeguard #1: Enforce a Call-In Policy
A call-in policy is an integral part of every leave policy. At the bare minimum, it should have the following information about a planned absence:
- The Time within which an employee should report an absence
- Who employees should report the absence to
- How employees report the planned absence
- What Information should employees include in the call-off
Having a call-in policy in place can help HR monitor employee abuse of FMLA leave and minimize workforce allocation issues.
When it comes to FMLA leave call in-policy, employees need to:
- Give 30 days advance notice, whenever possible
- Share pertinent information with the employer for them to classify it as an FMLA leave
- Provide medical certifications within 15 days of the employer’s request
- Inform the employers if this is part of an intermittent FMLA leave that was previously approved
HR enforcing a strict call-in policy is the first safeguard against FMLA fraud. It indicates to employees that opting for FMLA leave isn’t a magic bullet for unannounced leaves and can be open to scrutiny.
FMLA Abuse Safeguard #2: Ensure Certifications Are up to Scratch
The medical certification form is the best tool to minimize FMLA abuse. It is where a doctor certifies that the employee or their immediate family suffers from a serious health condition. The employee must procure this certification from their health service provider within 15 days of the employer’s request.
The US Department of Labour has a medical certification format that HR can opt for. But in case any party needs to make their own, any FMLA certifications must include the following:
- Contact information for the health care provider
- The date the serious health condition began
- The possible duration of the illness
- Any additional medical information that can be released legally and is pertinent
- Information regarding why the employee cannot perform the functions of their job
- The care that needs to be provided in case its FMLA leave taken for an immediate family member
- In case the employee wants to opt for intermittent FMLA leave, information showing the medical necessity and the dates of the planned leave
Employees can often use medical certifications to circumvent the system. How do they do that, you may ask?
If a single doctor is making a suspiciously large number of FMLA medical certifications for your employees, it probably is a scam.
Falsifying medical certifications to their convenience could be another method.
The penalty for falsifying FMLA certifications needs to be discussed with employees while onboarding.
In any case, when something is certified by a third party, HR tends to take it at their word. But if they have any reason to question the validity of any medical certification, there are ways to authenticate it.
Authentication of medical certification
If the employer has received all the information listed above, they have no right to ask for any additional information. But an HR can reach out to the health service provider to authenticate the certification and pose any questions for clarifications.
The initial medical certification is paid for by the employee but if the employer needs a second opinion, they need to pay for it themselves. They can’t opt for their regular health service provider in this case.
If the second opinion differs from the first, a third can be opted for at the employer’s cost. The employer and employee need to decide on which health service provider would be best. The third opinion is final and isn’t up for debate by either party.
Clearly, if obtained within the right time frame, a medical certification is a great way to eliminate FMLA abuse.
FMLA Abuse Safeguard #3: Recertify if Required
Recertification is an excellent way to keep FMLA abuse under control. However, be careful while employing this. Requiring too many recertifications can make employees feel that the company isn’t supportive and lead to attrition in the future.
Under normal circumstances, recertification is only required to reverify the health condition at the start of a new year and when the reason for FMLA leave changes.
Generally, employers cannot request recertification before 30 days. However, employers can request them if:
- The employee needs a leave extension
- The reason for FMLA leave has changed considerably
- The employer has doubts about the employee’s reason for FMLA leave
- Irregular intermittent leaves
Recertification is also subject to second or third medical opinions if required. Our only tip here would be to limit periodic recertifications. They may come at a considerable cost to the employee and lead to employee disengagement.
FMLA Abuse Safeguard #4: Analyze Leave Patterns
Analyzing leave patterns is an important method of preventing FMLA abuse.
Consider the following situations:
- Do your employees frequently take FMLA leaves before/after a long weekend?
- On being denied vacation requests, are your employees applying for FMLA during the same period?
HR can zero in on these irregularities by digging deep into leave analytics.
We don’t want to toot our own horn, but AttendanceBot has a leave dashboard that HR can use to find these FMLA discrepancies easily. Reach out to us for a demo, and we’d love to take you through its features.
But getting back to the point, if HR feels that employee leave patterns are suspicious, they can reach out to the employee’s physician to confirm if the pattern is consistent with their illness.
Although the physician is likely to say that it is, it lets employees know that their requests are being monitored. But do ensure that this monitoring does not amount to harassment because that can lead to an interference claim.
FMLA Abuse Safeguard #5: FMLA Leave Scheduling
Employees need to give 30 days’ notice for any foreseeable FMLA leave. In case the employee fails to do so, employers can delay the leave for 30 days after the application date.
This safeguard is only applicable for limited situations. For example, in a scheduled non-emergency medical treatment, the employee must provide reasonable advance notice. If they don’t, the employer can request a reschedule based on workforce requirements.
In case of planned FMLA leave, it is in the best interest of both parties to try and schedule it when there are minimal disruptions in company operations. For this to be applicable, employees need to be informed and incentivized for it.
What Are FMLA Violations by Employers?
Although we’ve spent most of this blog talking about FMLA fraud by employees, it is important to note that FMLA violations by employers is also a major concern. Inadvertent and wilful FMLA violations can give rise to costly lawsuits.
Although this list isn’t exhaustive, these are some of the FMLA violations that companies could make:
Not Recognizing an FMLA Request
Employees don’t have to use the term “FMLA” to request leave under it. The manager’s responsibility is to look at the request, understand the category, and abide by FMLA law.
If the employee mentions a serious health condition and the manager doesn’t recognize this as FMLA qualified, it is a compliance issue. If they penalize them for an emergency leave, it will leave the company open to a lawsuit.
HR needs to go out of its way to ensure that managers are trained to recognize FMLA leaves in any circumstance.
Disciplining Employees for FMLA Leave
It is illegal to fire an employee for opting for an FMLA leave, and most companies steer clear of this. But there is a grey area where managers or co-workers may harass employees once they return from FMLA leave. Employers can also make the mistake of holding back promotions due to frequent intermittent FMLA.
All this can amount to expensive and long-drawn lawsuits.
Requiring an Inappropriately Long Call-In Period
Workforce requirements can be a task to juggle with frequent FMLA leaves by employees. But that doesn’t mean that we can ask them to give necessarily long call-in periods for FMLA leave. The law stipulates 30 days, at most and anything more than this is unlawful.
Failure to Recognize Qualifying Reasons for FMLA Leave
Perhaps the worst FMLA violation of it all. If a company rejects a genuine claim for FMLA leave, they lose both employee goodwill and possibly a large sum of money for non-compliance.
These are just some of the FMLA violations by employers. As we sat down to write this, we realized just how exhaustive this topic could be. We’ll be sure to write a dedicated blog post about FMLA violations by employers soon.
Are These Safeguards Enough to Prevent FMLA Abuse?
For the most part, they should do the job of limiting FMLA fraud. But the best way to prevent it is for the company to have such a strong connection with the employee that they wouldn’t dream of hoodwinking it.
But that’s a fairly unattainable dream for most companies so these should do the job of preventing FMLA abuse. If you have any more FMLA abuse strategies that you’d like to share, do reach out to us @HarmonizeHQ.