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'Tis the Season of Intermittent Leave Abuse

The holiday season is upon us again! And as your employees are counting down the days until a few well-deserved holidays, some may be a bit too eager to partake in some festive cheer.

Of course, many employees have legitimate reasons to take intermittent leave over the holiday season. But it doesn't hurt to keep your eyes and ears open to the possibility of FMLA abuse. We've put together a few tips for curbing abuse this season.

1. Establish call-in programs.
A successful call-in program will require employees to confirm the reason they are seeking FMLA intermittent leave and clarify, to the best of their ability, the anticipated duration and frequency. The best way to ensure that you get enough information during the initial intake and to show consistency in your administration is to have a standard checklist of questions that you ask each employee.

2. Be aware of your right to require medical certification.
The initial medical certification process allows employers to justly and lawfully request thorough information regarding the need for leave, and request clarification and authentication or seek additional medical evaluations if necessary. If the provided medical certification is not sufficient, send a written deficiency notice to the employee communicating what they must do to obtain FMLA protection. You must initially provide at least 15 days for an employee to return a complete and sufficient medical certification, although you may extend the employee’s time to do so. If the certification is not returned and there are insufficient reasons for the delay, you may deny the FMLA leave request.

3. Review frequency and duration of employee leaves.
In order to ensure that employees are taking the leave for which they have been approved, periodically review the frequency and duration outlined in the medical certification and compare this to the absences the employee has taken. Look for significant deviations from the expected frequency and duration; if deviations are apparent, you should request recertification.

4. Be careful about conducting surveillance.
If there is a concern of suspected abuse – say the employee consistently takes Mondays and Fridays off – employers may choose to enforce a check-in policy that goes beyond the call-in program or conduct surveillance. Interfering with an employee’s FMLA leave is unlawful and consulting with an employment counsel in advance about steps of this nature is highly advisable. Consider the circumstances of the leave (is there a physical limitation with visible restrictions or something less detectable?) and the possible outcomes, both positive and negative. Be careful not to take any measures that invade the employee’s privacy or that of their family.

5. Offer more generous company policies to deter abuse.
As an employer, you can offer more generous company policies such as a paid leave policy that employees could take concurrently with FMLA, either for part or all of the time. While you cannot interfere with your employees’ right to take FMLA, your company policy can have additional eligibility requirements for advance notice, certification, absence reporting and more. This kind of policy acts as an incentive that encourages employees to use leave more responsibly. Alternatively, you can require employees to use their paid time off (for example, vacation) when they take FMLA. This kind of policy can also deter abuse.

Want to learn more about managing intermittent leave? Check out our whitepaper: Managing FMLA Intermittent Leaves and Curbing Abuse.

About Presagia

Founded in 1987, Presagia has a long history of helping organizations solve complex business problems with easy-to-use solutions. Today, this means providing cloud-based absence management solutions that enable organizations to be more efficient, control lost time and risk, and strengthen compliance with federal, state and municipal leave and accommodation laws.

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