Going, Going, Gone! - When Employees Disappear During FMLA

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February 04, 2015

The vast majority of employees are only away from the workplace or use various leave benefits for legitimate reasons.  But for those employees who do abuse or take advantage of the system, it is important for employers to effectively manage and minimize the negative effects on the employer when employees are away from the workplace, which includes knowing the employer’s rights under the law.  The challenges to the employer are magnified when there is lack of sufficient personnel to cover the extended absences.

Managing leave for sick or injured workers under the Family and Medical Leave Act (FMLA) is challenging enough, but throwing in the Americans with Disabilities Act (ADA) and worker’s compensation laws is daunting for most employers. The basics of intermittent FMLA leave are the same as regular FMLA continuous leave. Employers and employees are subject to certain requirements for eligibility.

Generally, employers with 50 or more employees are required to comply with the provisions of FMLA. To qualify as an employee, one must have worked for that employer for at least 12 months and 1,250 hours in the last year. It should be noted that while the employee must have worked for you for 12 months, it does not have to happen consecutively, so if an employee is rehired within a seven year period, all time worked counts towards their FMLA eligibility. Eligible employees may take up to 12 weeks of unpaid, job protected leave in any 12-month period or up to 26 work weeks to care for an injured service member.

While FMLA provides for full day leave, it allows employees to take intermittent leave, which could include non-consecutive full days or incremental amounts of time during a work day.

Under FMLA, intermittent leave must be medically necessary and an employer can require the employee to provide a medical certification. Employers are also entitled to information on the expected frequency and duration of the periods of incapacity. Once approved, employees may take intermittent FMLA leaves in increments of days, hours, and even minutes. Employees may have multiple intermittent leave cases open at any given time and may take leave without notice in extenuating circumstances.

Employers must balance their efforts to prevent employee abuse of leave against the potential for lawsuits or government action for alleged wrongful denial of leave requests, discrimination, or termination on the basis of need for such leave.

Administering employee leave is further complicated by the fact that certain medical or disability-related issues can be subject to different federal and state laws at the same time.  Employers must then simultaneously ensure consistent compliance with the requirements of each.

While many employers are aware of their rights and obligations under FMLA, they are often reluctant to exercise their rights.  Enforcing call-in and call-out procedures, requiring complete and sufficient information on the medical necessity of intermittent leave, and engaging supervisors and managers to properly capture, report, and follow up on intermittent leaves all require time and effort. When the process becomes too onerous, inefficient, or unreliable, employers feel less confident in their ability to enforce their policies around abuse of intermittent leave.  However, while FMLA may seem like a leave law designed to benefit employees, employers have their own rights as well and exercising those rights can significantly reduce the cost to an organization for intermittent leave.

As an employer you have a right to:

  • Require employees to provide complete and sufficient medical documentation that not only supports the leave, but also supports the need for intermittent leave
  • Ask for a second opinion if you receive a medical certification that is suspicious, contains information that does not appear to be consistent with the described injury or illness, or appears to be contradictory
  • Ask for a re-certification if the circumstances of the leave have, or appear, to have changed
  • Require employees to identify which intermittent leave they are taking an absence for if they have multiple approved leaves
  • Require employees to be reasonable when scheduling intermittent leave so as not to cause undue hardship to the operation of the business

When a beloved (or even a not-so-beloved) employee announces that he/she has a serious health condition, such as cancer, it is very easy to give an emotional response. “Take all the time you need.  We’ll be here for you. Don’t worry about work.” And that’s okay. Compassion is an excellent quality in a supervisor but none of us can predict the future.  We don’t know in early 2015 what our precise needs will be at the end of 2015.  We may have a good idea, but it isn’t always 100% accurate.

Therefore, in addition to those compassionate comments, make sure you protect the employer’s side of the equation, too, by saying things like, “We’ll work with you as much as we can.” “We will do everything we possibly can to help you and your family.” It’s okay to give the employee a few days to breathe.  But get the FMLA ball rolling as quickly as possible because once the employee has exhausted FMLA, the employer has more flexibility if something unexpected comes up later and the employer really needs that position to get the work done.

For instance, if an employee requests two weeks of leave to have minor surgery, it may not be a pressing matter. But where an employee is frequently out sick for a medical condition that seemingly has no end, then it becomes increasingly important to start capturing and documenting those absences protected under FMLA. If you don’t start designating, the employee will ALWAYS have 12 weeks of FMLA available. So get started. Maybe he/she will exhaust his/her FMLA, maybe he/she won’t. But he/she will NEVER exhaust if you don’t start.

If you are in a situation where you are not sure whether an employee is really taking advantage of your company’s leave benefits, do a little research.  Your payroll system will tell you whether the absences show a suspicious pattern.  Is the employee calling in around days off, Mondays or Fridays?  Are they leaving every time a difficult task is assigned to them?  These are all clues that it is time to be proactive.

Properly certifying, scheduling, and tracking are the basics of the intermittent leave process but knowing how to curb abuse and enforce disciplinary action, when appropriate and required.  Ensuring that you have meet your legal obligation to post information regarding FMLA and having a sound leave policy are initial steps to minimizing the risk of leave abuse in your organization.  Hopefully, all of your employees use leave benefits for legitimate reasons, if you have a few who don’t, keep these tools in mind.

Jennifer Van Cleave, Marketing Administrator
(210) 253-1595