Cracking Down on FMLA Abuse: Part 2

Cracking Down on FMLA Abuse: Part 2

This is the second part of an article about tackling the problem of FMLA abuse. The first part of the article was published last week.

7. Assign employees taking intermittent leave to alternative positions that cause less disruption, if possible.

If an employee's continued intermittent absences interfere with operations, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position.

The alternative position must have equivalent pay and benefits, and the employee must be reinstated after the need for leave ends.

Note: An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee.

8. Require "fitness for duty" certifications for employees returning to

When employees return from leave for their own serious health condition, an employer can require a fitness for duty determination, which is another way to prevent abuse. However, fitness for duty certification cannot be required for a return from intermittent FMLA leave.

9. Require employees to submit a recertification every 30 days.

However, if the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting recertification, except as provided below.

An employer can require re-certifications more frequently than every 30 days if:

  • The employee requests an extension of leave;
  • The circumstances described by the previous certification have changed significantly (e.g., duration, frequency, or severity of the condition); or

*The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. For example, if an employee is on FMLA leave for four weeks due to the employee's knee surgery, including recuperation, and the employee plays in company softball league games during the employee's third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the employer to request recertification in less than 30 days.

In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition).

10. Require second and third opinions.

Many employees use friends and acquaintances in the medical profession to provide questionable certifications for intermittent leave. Employers who question the validity can challenge it by requiring an objective healthcare provider to look at the illness.

11. Have a policy prohibiting employees from working second jobs while on leave.

Without a uniform policy against holding a second job while on any type of leave (other than vacation), an employee on FMLA can be protected from disciplinary action for working a second job while on FMLA leave. Avoid the potential for abuse with a policy on point.

12. Use private investigators. If an employee is caught engaging in fraud, courts have been reluctant to hold it against an employer who terminates the employee.

Remember, the key to avoiding abuse is consistent enforcement of leave policies designed to prevent it.