Q. In trying to reduce the amount of FMLA abuse in our Company (about 30% usage), we are contemplating having employees returning from FMLA leave complete a form that asks why they were out, had they been out for this reason before (and when), and that they took leave for the reason they provided. Can we implement this procedure without violating the FMLA?
A. This procedural requirement does not necessarily run afoul of the FMLA, but I have some concerns about FMLA interference if you only require it for employees returning from FMLA leave.
As an initial matter, you have the right to ask your employees questions about their leave of absence so as to determine whether FMLA applies. So, asking them why they were out and whether they’ve been out for this reason before is acceptable. In fact, I encourage you to ask these questions up front. (See Tip #2 below)
Asking them to confirm that they actually took leave for the reason provided? This is where it gets a bit tricky. My concern in asking this kind of question is the risk that it tends to treat differently those who are returning from FMLA leave versus those who are returning from other forms of leave, thus causing the employer to be susceptible to an FMLA interference claim. Here, the argument is that the employer is treating the FMLA folks differently than other employees when it requires them to complete a form attesting to their FMLA usage. As a result, a plaintiff’s attorney will argue that your practice denies the exercise of FMLA rights, which is prohibited by the FMLA regulations. 29 CFR 825.220(a)(1)
To avoid the risk of an FMLA claim, it’s best to implement this procedure for an employee returning from any leave of absence — FMLA or for another medical reason. My suggested form goes something like this:
The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document.
Other Tips to Combat FMLA Abuse
Fortunately for employers, there are several tools available to combat FMLA abuse. In addition to the Personal Certification outlined above, I’ve made the following suggestions to clients:
- Require that Employees complete a written leave request form for all absences. Although an employer cannot deny FMLA leave if the employee provides verbal notice of the need for FMLA leave and they articulate an unusual circumstance as to why they could not follow proper procedures, requiring the employee to put a leave request in writing and return it to Human Resources tends to deter them from gaming the system.
- Prepare a list of probative questions you ask of all employees when they ask for time off. Employers have the right to obtain information from the employee about their need for leave. Prepare a list of questions that you ask your employees when they call in an absence. These will help you better determine whether FMLA is in play and if the request might be fraudulent:
– What is the reason for the absence?
– What essential functions of the job can they not perform?
– Will the employee see a health care provider for the injury/illness?
– Have they previously taken leave for this condition? If so, when?
– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?
– When do they expect to return to work?
- Enforce call-in procedures. Employers typically may deny FMLA leave (and potentially discipline the employee) if the employee fails to follow your customary call-in procedures, absent an unusual circumstance. (See questions to ask the employee above.)
- Certify … and Recertify! Clearly, one of the best tools to fight FMLA abuse is the use of medical certification at various intervals: initially to verify the serious health condition; every new leave year; every time the reason for leave changes or the employee requests an extension. Employers should require recertification: at regular intervals; if the frequency or duration of the absences changes significantly; if there is a pattern of suspicious absences; or if the employer receives information that casts doubt on the reason for leave. Keep your employees honest – require them to certify their absence and seek recertification at the earliest opportunity.
- Scheduling Medical treatment Around Your Operations. Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.
- Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy and forms are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
