Compliance Navigator

Although federal FMLA (Family and Medical Leave Act) leave can be difficult to understand with all of its rules and regulations, there are ways employers can improve their FMLA administration, guard against leave abuse, and ensure covered employees can take advantage of leave if necessary. 

Here are several practices employers should follow to make their FMLA leave administration more efficient and protect against violations and lawsuits.

Mandate Written Leave Requests for All Absences

Employers may require employees to comply with the employer’s usual and customary leave policies when requesting FMLA leave, including requiring a written leave request, unless unusual circumstances prevent such compliance. Although employers cannot deny an oral FMLA request when the employee articulates unusual circumstances for not applying for leave in writing, having a policy requiring employees to request FMLA leave in writing will likely cause them to think twice about committing leave abuse. 

Closely Monitor Leave

Employers should diligently track their employees’ use of FMLA leave. When employees know their FMLA leave is closely monitored, they will be less inclined to use the leave inappropriately.

Use Medical Certifications Properly

When employees request FMLA leave for their own serious health condition or to care for a family member with a serious health condition, specify that the employee must provide a complete and sufficient medical certification. Employers may use certification forms made available by the U.S. Department of Labor (DOL) or create their own forms, though many HR professionals choose to rely on the DOL forms. Also, to keep employees honest regarding their leave use, seek recertification as soon as the law allows.

Require Second and Third Opinions, When Necessary

Employers often have reasons to question the validity of an employee’s medical certification. If so, you should request a second medical opinion at your expense. A third opinion at the employer’s expense may also be requested if the opinions of the employee’s and the employer’s designated health care providers differ.

Keep Detailed Records of FMLA Leave

FMLA regulations require employers to keep certain records or face penalties for noncompliance. It is also important to keep detailed records to justify or support any action an employer takes regarding an employee’s FMLA leave. In the end, proper documentation is indispensable to consistent decision making and helps employers avoid liability for discriminatory treatment.

Require Non-Disruptive Medical Treatment and Temporary Transfers

Require employees to reasonably try to schedule medical treatment around the company’s operations and consider temporarily transferring employees to an equivalent position when intermittent and reduced schedule leave is sought. Employers should take advantage of both these options.

Investigate Possible Abuse

Employers may receive information suggesting that an employee is using FMLA leave for activities inconsistent with their leave request. In this case employers should not hesitate to investigate the suspected abuse. Although the fraudulent use of FMLA leave can lead to employee discipline, employers should carefully consider the strength of their evidence before imposing discipline to prevent FMLA interference or retaliation claims.

Substitute Paid Leave for Unpaid FMLA Leave

FMLA regulations allow employers to require employees to substitute accrued paid leave for unpaid FMLA leave. “Substitute” means paid leave provided by the employer runs concurrently with unpaid FMLA leave. Employees may be more likely to use FMLA leave wisely and not take unnecessary time off if they must burn through accrued paid leave to take the time off.

Properly managing FMLA leave is a significant challenge. The practices noted above will help employers administer FMLA leaves more efficiently and possibly discourage workers from abusing leave. Remember, however, that eligible employees are entitled to take the time off provided by the FMLA without employer interference. Employers should, therefore, work with their employment counsel to ensure they are using the best and most efficient FMLA leave practices for their organization.