FML Abuse

4429354

We have two employees who are dating, live together and who have both been approved for intermittent FML (for different conditions). Over the last two months they have missed they exact same days for FML. They even call the HR Office within 2 minutes of each other to report their absence for the day. Both employees are within their approved guidlines. It seems to us that this is too coincidental. Is there anything that we can do? We are monitoring their FML carefully to see if the miss more than what is approved. We talked with a lawyer who doesn't feel we have any options.

 Any suggestions would be appreciated. 

cappy

Stay within the advice of your attorney, which goes without saying.

 There are a couple of things that you can do to prevent fraud.

1. If there appears to be a substantial change in the conditions of the FMLA absence you can send them for a medical recertification.
2. You can treat an absence as a non-FMLA absence if the employee does not provide sufficient information. Saying "I'm sick today" is not sufficient notice that the absence may qualify as FML.
3. Require the employees to call in by a specific time and then ask for specific information (status report) each time. What is the problem; how long will it last; can they work part of the day; why can't they work; if they will see a doctor if not why not? Yes, you can ask these questions. 29 CFR 825.302(c)
4. Require a periodical call in during the day. Provide the employees an intent to return to work form. Require the employee to notify you when they leave the house and returned home and where they were when they left the house. 29 CFR 825.207(a)

These things can be controversial but are recommended by the Thompson Publishing Group as tips to prevent fraud.

HR36

If the employees absence "casts doubt on the validity of the certification" the employer may be able to request recertification less thaqn every 30 days (see DOL opinion letter May 25, 2004 FMLA2004-2-A)

The FMLA regulations at §825.308(a) limit recertification for pregnancy, chronic, or permanent/long-term serious health conditions, when no minimum duration of incapacity is specified on the medical certification, to no more often than every 30 days, provided the recertification is done only in connection with an absence. If circumstances have changed significantly, or the employer receives information which casts doubt upon the continuing validity of the certification, recertification may be requested more frequently than every 30 days.

DOL has stated that a pattern of Friday/Monday absences can constitute "information that casts doubt upon the employee's stated reason for the absence" (§825.308(a)(2)), thus allowing an employer to request recertification more frequently than every 30 days , provided there is no evidence that provides a medical reason for the timing of such absences and the request for recertification is made in conjunction with an absence. A recertification under these circumstances could thus be justified, for example, if a medical certification indicated the need for intermittent leave for two or three days a month due to migraine headaches, and the employee took such leave every Monday or Friday (the first and last days of the employee's work week).

 An employer, when requesting medical certification or recertification, may inform the health care provider that the employee has a pattern of Friday/Monday or apparent excessive absences. The FMLA does not prohibit an employer from including a record of an employee's absences along with the medical certification form for the health care provider's consideration in determining the employee's likely period of future absences.

4429354

Thanks for the adivce. Most likley they will need to recertify since they are both now in excess of what they are approved for. I will definatly send the doctor their attendace. Both have missed the last two Mondays and Tuesdays. Its just frustrating because there are other employees and supervisors that are noticing the pattern and they think HR is not doing anything about it.

TXHRGuy

Ask your attorney if you can require people who take intermittent leave to obtain documentation from a health care provider verifying that the cause of absence was the condition certified.  If that is permitted in your circuit, you will almost certainly have to modify your policy to implement (and get signatures on the new policy).  That way, these sort of absences cost money to take.  On the other side, of course, non-abusive intermittent FMLA gets beat up, too.