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REDUCING
Risk & Abuse
Of FMLA
LEAVE
what the employee’s issue is, this
is generally not acceptable under
the law. Tell coworkers that personnel matters are not discussed
with the staff and thank them for
their service.
Require medical
certifications. Employers
should consistently require
medical certifications of the
need for FMLA leave. If the
certification form is incomplete
or unclear, employers may ask
the employee to return the form
to the physician or may have
a company physician contact
the employee’s doctor for
clarification. Under the current
rules, employers may not directly
contact the employee’s physician.
Require recertifications
5when appropriate. Employers
are able to ask for recertifications
of conditions qualifying for leave
generally every 30 days. However,
if the original certification states
that the need for leave will last
more than 30 days, the employer
must wait whatever length of
time is indicated to obtain
the recertification.
Employers may require a
recertification earlier than every 30
days if the employee requests an
extension of the leave, if circumstances change significantly or if
the employer learns of information
casting doubt on the continued
need for leave. For instance, if an
original certification estimated that
intermittent leave would be needed
once or twice per month, the
employer may seek recertification
if the employee is subsequently
averaging two absences per week.
Conditionally designate
6leave as FMLA leave. When
you have information that an
employee’s absence is related
to a serious health condition,
designate the absence as FMLA-covered pending further information through the medical FMLA-certification process. In addition,
it is at times advisable to proactively request a medical certification from an employee who has
had multiple absences to assess
whether those absences may be
covered by FMLA leave.
Communicate clearly about
7FMLA leave. Many FMLA
lawsuits stem from either unclear
communication or a total lack
of communication about FMLA
leave. It is critical to keep employ-
ees apprised of their rights and
their obligations and to ensure
that your communications are
taking into consideration issues
under worker’s compensation and
disability laws.
Keep your policies, proce-
8dures and forms up-to-date.
The latest change under the federal
FMLA is the addition of military-related FMLA, which became
effective in January 2008. We are
also expecting new FMLA rules
from the Department of Labor at
the end of 2008 that will significantly affect the FMLA-notice
requirements. If you have not had
your FMLA documents updated
recently, it is important to do so.
While there is no “magic pill”
to make FMLA administration an
easy task, consistently implementing these steps will lower your risk
of FMLA abuse and liability.
