Controlling FMLA Abuse

Most employees using the myriad benefits of the Family & Medical Leave Act are honest, deserving and exercising good faith.  On the other hand, some employees are abusing FMLA.  Are there some techniques tribal employers can implement to minimize FMLA abuse by those employees who may be tempted to cut some corners?

Yes.

Permission

Get employees to complete a leave request for any and all kinds of leave requested. Employees can provide verbal notice and based on the contents of that verbal notice, an employer may have to extend the leave.  But for record keeping purposes for all types of leave (bereavement, leave of absence, non-FMLA medical, cultural) getting employees to complete an application may limit abuse.  If there is a dispute later about whether the employee was truthful in requesting leave, a leave request form completed by the employee is better evidence of what the employee said than a phone call between the employee and her manager.  Moreover, requiring an employee to complete an application and submit it to human resources can lead to the next recommendation.  Have a conversation with employees when they apply for leave.

Conversation

The employer can ask employees questions about the need for leave so the employer can determine the employer’s responsibilities and the employee’s opportunities regarding leave.  To avoid an interference claim from an employee, prudent employers ask a standard protocol of questions of all employees seeking any type of leave.  Here are some of those questions:

What is the reason for the requested leave?

If the reason is a medical condition, what parts (essential function) of your job are you unable to perform?

Do you intend or have you seen a medical provider for the injury or illness?

Have you previously taken leave for this condition?

When do you expect to return to work?

Acknowledgement

Consent can be magic in the law and getting employees to consent to the tribal employer’s leave rules and protocols may help minimize the threat of litigation in a forum outside the tribal employer’s grievance process or tribal court.  Remember whether the FMLA applies to tribal employers is an open question and therefore obtaining employee consent to the tribe’s rules and the tribe’s dispute mechanisms (grievances, appeals, tribal court) is an important aspect of minimizing risk.

Gather medical information

The law lets employers engage in certification in evaluating and re-evaluating the necessity for leave.  Certification is the word used to describe the FMLA’s process for gathering medical information.  Certification answers two questions:  Does the employee have a serious health condition as defined by the law and the regulations and does the serious health condition preclude the employee from performing one or more of the employee’s essential functions?  Employers can insist on certification upon request of leave, if the reason for the leave changes, or the employee requests an extension of the leave.  Employers can seek re-certification if there is a pattern of suspicious absences or the employer receives information that generates doubts about the reason for the leave.  Employers should exercise their rights to gather information.

Understand the medical information

Employers can take steps to verify that employees are providing information from their medical provider, and when that information is not clear, employers can seek clarity from the medical provider.  Authentication is requesting the medical provider to verify that the provider completed the certification form and signed it.   Clarification is contacting the medical provider to understand handwriting or to understand the meaning of a response.

Recommendation

While recognizing that the majority of employees using FMLA are honest and are exercising this opportunity in good faith, there are others who are abusing the system. Use these tools to minimize the risks generated by those employees abusing the system.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.