Have your employees' absences from work been a bit more frequent lately? And are you tired of the lame excuses they're providing? After all, there are only so many times your employee's dog can knock over the Christmas tree....on top of your employee, right?
In this "best of" FMLA post, employers need not settle for patterns of absences or even suspicious excuses for absences. Keep in mind a few best practices to combat FMLA abuse:
- Recognize whether whether the employee is seeking leave that might be covered by the FMLA: Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it's an absence that clearly does not trigger the FMLA (e.g., "I'm sick," or "My daughter has the flu"), you simply can subject this absence to your usual attendance policies and take action as necessary.
Of course, it's never that easy. Employees are not required to cite specifically to the "FMLA" as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that pops up intermittently throughout the year; c) is seeking treatment for what appears to be a serious medical condition; d) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.
- Require that Employees complete a written leave request form for all absences: Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system. And it tends to help your administration of employee leave.
- Enforce usual and customary call-in procedures: Also under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer's call-in procedures. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance. In practice, not nearly enough employers utilize this tool, even though they should!
Prepare a list of probative questions you ask of all employees when they call in to report an absence: This list will help you determine whether any of the conditions in No. 1 above may be in play. As the employer, you have the right to know why your employee cannot report to work. So ask! During the call with the employee (or when you call them back after they've left you a voicemail reporting their absence) you should inquire about:
- The specific reason for the absence
- What duties of the job they cannot perform
- Whether they will see a doctor for the injury/illness
- Whether they have suffered from this condition before and previously taken leave for it. If so, when?
- When they first learned they would need to be absent
- The expected return date (or time, if less than a day)
- Use medical certification and recertification to your advantage: Medical certification is one of the best tools to combat FMLA abuse. So, use it! Moreover, if this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option. Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays? Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately.
If you are concerned about a Monday/Friday pattern of absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.
- Conduct a comprehensive audit of your FMLA policy, procedures and use of leave: As we approach a new year, it is the perfect time to work with your employment counsel to ensure that your FMLA policy and procedures 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.