FMLA abuse...need advice

srwmba · March 2003

Hello - I was just curious to see what other's have done from a corrective action stanpoint in regards to employees that abuse FMLA. In the situation I'm dealing with the employee has taken every Monday and Friday off for FMLA for the past 3 months. She is also using it on the DAY that she has newly accrued FMLA time. She somehow manages to be at work on all the days that she doesn't have any FMLA time available. Thanks for any advice!

ritaanz · March 2003

Do I understand that you accrue FMLA days?

srwmba · March 2003

This employee does because she exhausted her 1250 in 2002 so she now uses her time as she accrues it back for 2003. Hope that makes sense.

ritaanz · March 2003

The FMLA of 1993 gives ELIGIBLE employees of a COVERED EMPLOYER the right to take up to 12 weeks of unpaid leave in any 12 month period. An ELIGIBLE employee has worked for at least 12 months total (not neccssarily consecutive) and put in at least 1,250 hours of service with that employer during the previous 12 months.

Do you have medical certification for this employee? Has the company approved Intermittent Leave? How has the company determined the 12 month period? The FMLA gives employers 4 methods for computing the 12 month period in which employees may receive 12 weeks of FMLA leave. They are: a calendar year, any FIXED 12 month "leave year" such as a fiscal year, the 12 month period measured forward from the date an employee first FMLA leave begins or a "rolling" 12 month period measured backward from the date an employee uses any FMLA leave.

Perhaps with some additional information, we can give you additional information.

srwmba · March 2003

We use the 12 month period measured forward from the date the employees first FMLA leave begins or a "rolling" 12 month period measured backward from the date an employee uses any FMLA leave. So basically this employee uses her FMLA house on the DAY that she earns it back. So for instance...as soon as she has 8 hours of FMLA back in her bucket she calls in on that day. Which also is a usually a Monday or a Friday.

Whatever · March 2003

When was the last time you got certification from a doctor? Do you have proof that she had the approved medical treatment? I am assuming that they have a covered condition. Have you considered getting a second opinion from your doctor. Does she ever use a personal, vacation or sick day in order to get treatment on a Monday or Friday? I know these are a lot of questions, but I believe additional information is needed.

srwmba · March 2003

We received certification on Jan. 3, 2003 for her daughter's severe brochial asthma condition. The physician certified her for ongoing intermittent FMLA to care for her daughter. We don't ask for physician's note everytime an employee uses FMLA, so we do not have any proof that she actually visited a physician and in her case the paperwork doesn't state that her absences need to be accompanied by an office visit. She did use her ill time and vacation time to cover her absences so they were paid although she has been out of both ill and vacation time and using leave without pay for the past few absences. Hope this information helps...

Whatever · March 2003

Asthma is not one of those disorders where the date of treatment can be predicted. Also, asthma attacks can be of different severities (is this a word?). The attacks can range from just doing inhalation therapy at home to rushing to the hospital emergency room. If I was you, I would try to find out if the child is getting preventive, regular treatment (i.e. allergy shots, medication). While FMLA doesn't require a visit to a physician at the time of occurence, it does require that a physician be involved. In my experience, when an employee has to be out because of a disorder such as asthma, even when the attack is very mild, they do call the physician. How you get this information I am not too sure. If it was me, I would check with my attorney and see if I can ask for additional information from the doctor (namely all dates of treatment and/or telephone consultations).

LindaS · March 2003

I disagree with Whatever, under the definition of a "serious health condition" states that absences attributable to incapacity of a medical condition that qualifies as a serious health condition qualify for FMLA leave even though the employee does NOT receive treatment from a health care provider and even if the absence is not three or more days. I interpret this to mean that an employee can miss time for a qualifying condition and have no contact with the physician during that time. In addition, if a person qualifies for intermittent FMLA (as this appears to do), you CANNOT require the employee to present a physician's certification each time the employee misses.

Whatever · March 2003

While it is not required that at the time of occurence, the patient visit the doctor, but how can you get certification without some physician involvement. There are many disorders in which a patient can be home and not see the doctor and still be entitled to FMLA. It is not my practice to get proof of medical treatment once the condition has been qualified. However, in a case where the asthma attack only occurs on a Monday or Friday and only when FMLA day has been earned back, I would be highly suspicious. Furthermore, I have never yet had case of a person who has asthma attacks who is not on medication to both try to prevent and if need be, alleviate the seriousness of the attack. That is why I suggested they contact an attorney.

CD PHR · March 2003

Oh, I feel your pain. I've had a couple of these myself.

The most effective way to handle these is to require a full medical recertification every 30 days for any "indefinite" FML leave, especially intermittent. I'm talking the fully completed 2-page DOL Certification of Health Care Provider form every 30 days. Do not accept a doctor's note. This will be more work for you, but it will also be more work for the employee, and that's the point. I've found that malingerers are inherently lazy and will eventually let their certification lapse if it becomes too much of a hassle to maintain it. Of course, any absences that are not FML-certified are treated as attendance infractions under your attendance policy.

srwmba · March 2003

Thanks so much for the advice. I really like the idea of requiring the employee to be recertified every 30 days. My only hesitation with that is that we have about 100 employees certified for on going intermittent FMLA and do not require them to be re-certified every thirty days...if I ask this employee to do so could she make a claim that we are descriminating against her? I suppose we would have the back up documentation that we believe she is abusing the entitlement.

LindaS · March 2003

Once you do for one, you have to do for all!! I wish there was something we, as employers, could do to stop the abuse of this law!! I have an employee that does alot of the same things you are talking about and have asked other HR people as well as attorneys what can be done and it appears our hands are tied. Once suggestion that was made to me, other than having the recertifications done every 30 days, is to examine what the physician wrote down on the certifications for the frequency of time off and if the employee is taking more, you can ask them to be reviewed by their physician due to a concern on your part that their problem may be more serious than the doctor knows about but other than that, your hands are tied.

I think even an attorney would have a hard time with a condition such as asthma. This type of problem is along the lines of migraines (the problem I'm dealing with) wherein there isn't any way to predict when this will "kick up" and most times the patient has some type of medication they take so they don't see a physician unless it becomes more serious. One other thing to add is that one example under the FMLA regulations is an employee being off for asthma and the health care provider advising the employee to stay home when the pollen count reaches a certain level - amazing, huh!!

This is a classic example of a law that was enacted to help people and someone taking advantage of it!! Hopefully the government will change things as they examine the current FMLA laws.

CD PHR · March 2003

Yes, you do need to be consistent. It's a lot more work in the short run, but it will pay off in the long run. You should see a dramatic decrease in the number of employees who are certified for intermittent leave. Employees need to understand that intermittent FML is NOT just an easy way to avoid complying with your attendance policy. Administered correctly, it is a pain in the rear for everyone involved, not just you.

When you think about it, it really doesn't make sense NOT to require regular recertification for "indefinite" leaves. "Serious health conditions" are often cured or substantially improved with treatment. Don't just assume that the facts haven't changed, because in all likelihood, they have.

Intermittent leave should only be approved in 30 day increments (however I would make an exception for intermittent FML for pregnancy, since pregnancy is not indefinite!)

Notify the employee in writing that their FML-certification will expire on xx date (30 days from the date the leave commenced) unless medical recertification is received by xx date.

Hope this helps.

FMLA abuse...need advice

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