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Problems with FMLA Abuse: How Can Employers Stop It?

Posted on December 4, 2013
Sharon HarperWritten by Sharon Harper | Email author

Over the years I’ve worked with a range of organizations in various industries and I’ve found that managing the Family Medical Leave Act (FMLA) is a common challenge.  The FMLA provision was implemented in 1993 as a means to allow eligible employees to have job protection while taking care of medical needs for themselves or eligible family members.    The concept of FMLA was great, in the sense that employees could take off the time they needed to get well, return to work, and not worry about being fired or terminated while out.  However over time, there have been lots of concerns regarding loop holes that are being taken advantage of by employees.

FMLA AbuseManagers and HR professionals are finding that employees are taking advantage of the opportunity to be out of work.   In some cultures, FMLA is even viewed as an option for long-term vacation needs or as a means to be out of work while performing outside employment.  In these situations, employees just get a doctor’s note, take the time off and return to work after completing their objective.

While FMLA guidelines must be adhered to, there are a range of options that allow the employer to strategically manage and minimize the abuse of FMLA.  As I reflect on where the disconnect happens, I find it is usually at the point when managers and human resources allow employees to submit questionable documentation and provide vague feedback regarding their expected absence.  In organizations that have a very structured leave administration procedure, the abuse is much less likely.  Employees will always need time off for medical issues, however, the more accountable they are, the less likely they are willing to use FMLA as a method of being out of work.

As an HR Business Partner with many years of leave administration responsibilities, it has been my experience that implementing a combination of practices will encourage employees to be more forthcoming in their needs.  Being strategic in minimizing abuse will also encourage employees to be willing to consider the needs of the employer when planning for medical services and recuperation time.   Following are a few of these suggested strategies.

Verify the employee’s eligibility for FMLA:

  • Ensure all FMLA leave within the past 12 months is tracked.
  • Ensure the employee has met the worked hours requirement for the past 12 months.
  • Ensure the leave is for an qualified need as outlined in the FMLA provision.

Enforce the notice requirements:

  • Did the employee notify you of their need for leave within a reasonable time frame?
  • Has the employee provided updated medical documents as required?
  • Review certifications carefully and request additional information if needed.
  • Ensure certifications are complete and sufficiently address the medical issues.

If there is concern regarding the physician’s instructions or need for FMLA you may consider the following actions:

  • Request a second opinion.
  • Request a re-certification every 30 days or when the minimum duration of the condition expires.
  • Require a fitness-for-duty certification in order to return to work with no restrictions.
  • Require your employees to provide status reports on a periodic basis.

Consider outsourcing your leave administration:

  • Take the burden of tracking and requesting documentation off your managers and HR team by having employees deal directly with a neutral party.
  • An outsourced vendor should be expected to practice consistency and focus on follow-up to obtaining documentation and updates.

While there will continue to be challenges of minimizing FMLA abuse, there are options and tools that empower the employer and help remove the feeling of being helpless.  Most of these tools require effort but can pay off in the long run. Using any combination of these strategies can send a message that FMLA is not to be abused but is available for employees who really need to take time off.

A few resources that may be helpful in managing FMLA best practices can be obtained on the following websites:

  1. Department of Labor, Wage and Hour Division, Family and Medical Leave Act
  2. Society for Human Resources Management article on FMLA Abuse
  3. Curbing Abuse Of “Intermittent” FMLA Leave

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