How to fight back against FMLA abuse

In the hands of honest employees, legitimate physicians and efficient HR professionals, the Family and Medical Leave Act (FMLA) helps millions of workers cope with critical health conditions and care for sick family members.

But the law can take a fraudulent turn when it’s abused by dishonest individuals, costing you thousands of dollars in unnecessary expenses and lost productivity. And claims are on the rise. According to a report by FMLASource, an affiliate of ComPsych Corporation, FMLA claims have increased more than 10 percent, largely due to the struggling economy and more workers pursuing their FMLA benefits.

Stand up to FMLA violations ...

At its most basic, the FMLA provides qualified employees with up to 12 weeks of unpaid leave per year for the birth or adoption of a child, to care for a spouse or immediate family member with a serious health condition or to recover after an employee’s own serious health condition. New FMLA military leave rules also provide job-protected leave rights to employees who care for service members with a serious injury or illness, or who face “qualifying exigencies” because a covered military member is on active duty or has been notified of an order to active duty.

But what is designed to help employees in a time of need is also rife with fraud. The following practices can help you stay on the right side of the law and protect you from mistreatment even in the most difficult situations:

Require employees to submit leave request forms – Putting pertinent information in writing often deters an employee from pursuing an unnecessary absence. An Employee FMLA Leave Request gathers the necessary information to determine an employee’s FMLA eligibility without violating privacy laws.

In addition, requiring employees to provide 30 days advance notice for foreseeable FMLA leave allows you to make scheduling adjustments and remain productive.

Obtain medical certifications, too – An easy way to keep employees honest is to require additional documentation in the form of medical or military certifications. Again, with G.Neil’s help, you can secure four different types of certification:

•    Medical certification (family member) – Completed by a healthcare provider to verify the employee’s need to care for a family member with a serious health condition
•    Medical certification (employee) – Completed by a healthcare provider to verify an employee’s serious health condition
•    Military certification (exigency) – To verify an employee’s need for FMLA leave for military duty
•    Military certification (injury/illness) – To verify an employee’s need to care for a covered service member/veteran with a serious injury or illness

In most circumstances, once you inform an employee of the need for certification, the employee must complete the certification and return it to you in 15 days.

It’s also acceptable to require employees to submit a recertification every 30 days for serious health conditions, as well as demand a second or third opinion. Dishonest employees may use friends and acquaintances in the medical field to supply questionable certifications. If you have suspicions about the validity of the certification, you can challenge it by requiring an objective healthcare provider to review the injury or illness.

Make employees tap all paid time prior to taking unpaid FMLA leave – Employees are less likely to manipulate FMLA benefits if they have to use their vacation days and other paid time off first.

Calculate leave using a “rolling” 12-month period – It’s wise to calculate the hours of an employee’s leave in a 12-month period, rather than a calendar year. This prevents employees from “double dipping” by taking 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year.

Require "fitness for duty" certifications for employees returning to work - When employees return from leave for their own serious health condition, you can require a fitness for duty determination. Keep in mind, however, that a fitness for duty certification cannot be required for a return from intermittent leave (time off from work on an occasional basis, rather than entire days at a time).

Structure FMLA leave around your needs – You are entitled to demand that medical treatments take place after hours, if they’re available. Employers can also transfer an employee who takes intermittent leave to a position less disrupted by frequent absences, as long as the pay and benefits are comparable.

Train managers and supervisors – Your managers and supervisors should know the basics of the law, including qualifying reasons for leave and notice requirements. With a greater awareness of the law, red flags can be identified and addressed sooner.

How to fight back against FMLA abuse