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Seven tips to curb leave abuse
By Camille Toney on July 13, 2018 at 2:45 PM

Empty chairs in cubiclesLeave management is a common topic of conversation for HR professionals and employment specialists. Knowing the leave laws and the types of leave are just the tip of the iceberg in leave management. It takes a defined process to generally look at each leave request while taking each request on a case-by-case basis. Even with having a dedicated process for leaves, employers still need to remain attentive to ensure the process curtails risk and curbs potential leave abuse. Below are a few tips to help in the process. The two main federal leave laws, the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), are the focus of these tips. However, employers should keep in mind the other federal and state laws that may be implicated in the leave management process.

1. Get a second medical opinion or clarification. (FMLA and ADA)

When obtaining the initial medical certification, employers should make sure the certification is adequate and reliable. If it is not, the FMLA provides for second and third opinions at the employer’s expense. If the second opinion differs from the initial medical certification, then the employer must obtain a third opinion that is binding upon the employer. While second opinions are not allowed in the ADA context, employers are permitted to obtain clarification where an ADA medical request is unclear. Employers should completely review all certifications and accommodation requests to promptly request clarification or second opinions when necessary to help prevent employee abuse.

2. Require notice of leave. (FMLA)

The FMLA allows employers to require employees to provide 30 days’ notice for planned/foreseeable treatment and appointments. If the leave is unplanned or unforeseeable, then require the employee to provide notice as soon as practicable. Employers should insist that employees adhere to these requirements. Another notice requirement allowed under the FMLA relates to employees on intermittent leave. An employer can limit the time frame within which an employee on intermittent leave can identify an absence as intermittent leave and can require that the request be made in writing. This prevents an employee from first saying he/she had car trouble to explain an absence, but subsequently claiming that the time off was for intermittent FMLA leave when the absence is used toward disciplinary counseling. The use of forms in this regard provides the employer with stronger arguments in the event an employee claims FLMA interference or some other unfair employment claim.

3. Require exhaustion of PTO. (FMLA)

Again, this is something that must be included in the FMLA policy. It should make clear that any available paid leave (such as paid time off (PTO), paid vacation, paid sick days, short-term disability, etc.) runs simultaneously, or concurrently, with unpaid FMLA leave. Employees are less likely to abuse leave time when they know it will burn their vacation or PTO. After the paid time off is used, any remainder of the FMLA is unpaid.

4. Track intermittent leave and compare to medical certification. (FMLA and ADA)

Comparing the medical certification to the actually taken intermittent leave is an important step often overlooked by employers. If the employee’s medical certification is not consistent with his/her actual use of leave, then it could be a cause for recertification.

5. Follow internal procedures. (FMLA and ADA)

Employers should make sure to follow the internal policies of the business. Often times, these polices give specific timeframes for responding, and employers are not following their own directives. The same goes for the policies to employees regarding call-in procedures. If an employee fails to comply with the usual call-in procedures, discipline the employee accordingly.

6. Obtain recertification as often as permitted. (FMLA and ADA)

Obtaining recertification depends on the leave law at issue. Under the FMLA, there is a general “30-day rule” stating that an employer may request recertification “no more than every 30 days” in connection with an employee’s absence. However, if the original medical certification provides that the leave is going to last a minimum of more than 30 days, the employer must wait until that time has passed before requesting a recertification. For instance, if the original certification states that an employee needs continuous or intermittent leave for 60 days, the employer must wait 60 days before requesting recertification. There are three exceptions to this rule: 1) if an employee requests an extension of leave beyond the duration stated in the certification; 2) if circumstances described by the previous certification have changed significantly; or 3) if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. Additionally, in all cases, an employer may request recertification of a medical condition every six months in connection with an employee’s absence. The ADA is less clear in this regard. Employers should adhere to their internal policies, be consistent, and use judgment when asking for a recertification in the ADA situation.

7. Remember the interactive process. (ADA)

When an employee exhausts FMLA leave, the employer cannot simply terminate the employee if the employee cannot immediately return to work. A leave of absence, even extending beyond the time required by the FMLA is, in most jurisdictions, considered a reasonable accommodation to which an employee may be entitled. The employer must engage in the interactive process as required by the ADA to determine if an accommodation, including additional leave time, may be necessary. Both parties need to communicate in good faith in this process.  

These tips are just a few to get started in better managing leaves in your business. If your business needs help establishing a process or you have any questions on a leave issue specific to your business or state, please contact any of the attorneys in our Employment & Labor Practice Group.

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