Reading Room

REDUCING RISK AND ABUSE OF FMLA LEAVE

by Jennifer Mirus

The federal and Wisconsin Family and Medical Leave Acts (FMLAs) were enacted for the valid purpose of providing employees with unpaid, job protected leave for specific medical and family reasons. When enacted, the laws were intended to provide employees with leave for serious conditions that might extend beyond the employer’s sick leave policies or that last more than few days. However, the laws also permit the use of FMLA leave on an intermittent basis, meaning that employees may take small increments of leave (one hour or even less, depending on the employer’s policies) throughout the year without advance notice. Several issues under the FMLAs, including intermittent leave, have created frustrations for many employers.

Consider the following example: Lois, a second year employee, has had a spotty attendance record. She has admitted to several tardies due to oversleeping and traffic problems. Lois has also had below average productivity and has shown a lack of teamwork. When Lois has another absence, you prepare a written warning on attendance and meet with her for a disciplinary meeting. Lois tells you in this meeting that she has chronic migraine headaches, has missed work several times due to migraines, and will be providing you with medical certification for intermittent FMLA leave. Once Lois provides the certification, she is generally entitled to 12 weeks of job protected leave (again, in one hour or even smaller increments). Although Lois’s performance continues to be spotty, you are now concerned that if you address these issues, Lois will believe she is being punished because of her FMLA leave. Lois’s co-workers are frustrated and you now feel unable to address the legitimate performance issues.

Although the FMLAs give employees significant leeway in taking leave, there are steps employers can take to more effectively enforce their attendance policies and reduce risk under the FMLA.

1. Attendance policies and procedures. Adopt an attendance policy that clearly articulates your attendance expectations and the required procedures for requesting and reporting expected and unexpected absences, including detailed call in procedures. It is important to consistently enforce the policy and procedures for all employees taking any type of sick leave, whether or not FMLA covered.
2. Address attendance and performance issues. Do not procrastinate on addressing attendance and performance issues. If an employee is not meeting your legitimate expectations, it is critical that you talk with the employee at that time about the issue and have the employee sign off on documentation indicating that the issue was presented. In Lois’s situation, had the employer addressed and documented her attendance and performance problems before the FMLA issue was raised, the employer would be in a much stronger position to address future issues and avoid a claim of retaliation.
3. Maintain confidentiality. The FMLA and disability laws generally require employers to maintain confidentiality regarding an employee’s status and leaves. Although an employee’s chronic absences or modified schedule may cause “rumblings” amongst co-workers, it is important not to disclose medical information. Although it may seem like a good idea to explain to staff what the employee’s issue is, this is generally not acceptable under the laws. Tell co-workers that personnel matters are not discussed with staff and thank them for their service.
4. Require medical certifications. Employers should consistently require medical certifications of the need for FMLA leave. If the certification form is incomplete or unclear, employers may ask the employee to return the form to the physician or may have a company physician contact the employee’s physician for clarification. Under the current rules, employers may not directly contact the employee’s physician.
5. Require recertifications when appropriate. Employers are able to ask for recertifications of conditions qualifying for leave generally every 30 days. However, if the original certification states that the need for leave will last more than 30 days, the employer must wait whatever length of time is indicated to obtain recertification. Employers may require a recertification earlier than every 30 days if the employee requests an extension of the leave, if circumstances change significantly, or if the employer learns of information casting doubt on the continued need for leave For instance, if an original certification estimated that intermittent leave would be needed once or twice per month, the employer may seek recertification if the employee is subsequently averaging two absences per week.
6. Conditionally designate leave as FMLA leave. When you have information that an employee’s absence is related to a serious health condition, designate the absence as FMLA covered pending obtaining further information through the medical FMLA certification process. In addition, it is at times advisable to proactively request a medical certification from an employee who has had multiple absences in order to assess whether those absences may be covered by FMLA leave.
7. Communicate clearly about FMLA leave. Many FMLA lawsuits stem from either unclear communication or a total lack of communication about FMLA leave. It is critical to keep employees apprised of their rights and their obligations and to ensure that your communications are taking into consideration issues under worker’s compensation and disability laws.
8. Keep your policies, procedures and forms up to date. The latest change under the federal FMLA is the addition of military-related FMLA, which became effective in January of 2008. We are also expecting new final FMLA rules from the Department of Labor at the end of 2008 that will significantly affect the FMLA notice requirements. If you have not had your FMLA documents updated recently, it is important to do so.