10 ways to stop FMLA abuse

Employer Protections

against

FMLA abuse

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1) Enforce FMLA notice and “call out” requirements

• Employees on intermittent FMLA leave are required to follow your normal absentee/ call-out procedure

• If they’re using FMLA leave, they have to let you know

they’ll be using FMLA leave for that day’s absence.

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2)Check FMLA Eligibility

• Investigate the company’s and the employee’s FMLA eligibility

• You have 5 business days to respond if the employee is FMLA eligible or not– This is not medical certification. This is asking if they meet the three

criteria below

• FMLA eligibility only kicks in when:– The company has 50 or more employees in a 75 mile radius– The employee has worked for the company for a minimum of 12

months in the last 7 years– The employee has worked 1,250 hours in the last 12 months

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3)Check the certification forms to prevent FMLA abuse

• Make sure the FMLA certification form is completed in full

• The certification form can go directly from the medical provider to the company

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4) Require Extra Certifications to prevent FMLA abuse if needed

• If you need clarification on the FMLA certification, you can ask the doctor for clarification

• If you don’t like the answers on the certification, you can require a 2nd and 3rd certification from a different doctor (as long as they are not directly employed by the company) at

the company’s cost.

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5)Request Re-certification

• For chronic conditions, every six months

• For all other conditions, re-certification can be done if there is a change in the medical condition or the number of absences

• Medical recertifications prevent FMLA abuse by removing the cause for the leave

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6) Use Paid Time Off and Sick Leave First

• Employees can be required to use PTO and Sick Leave prior to FMLA leave. This can reduce the overall leave time used.

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7) Remind employees about scheduling treatments outside of

the work day

• Encourage employees to schedule their treatments for medical conditions so it's not disruptive to work.

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8) Check payroll

• FMLA leave is unpaid

• Dock pay for time used for FMLA leave– You won’t lose exempt employee status for salaried

employees

• Some bonuses can be denied if a person uses a significant portion of FMLA leave

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9) Temporally transfer

• If the intermittent FMLA leave impacts your business operations, you can transfer the employee to another job– The pay and benefits have to be equal to their

old job– When they return from intermittent FMLA

leave, they return to the same or equal job with the same or equal pay, benefits, and responsibility as their job prior to leave

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10) FMLA leave isn’t retroactive

• Employees have to let you know about a FMLA related absence

• If the employee didn’t let you know about the condition or provide FMLA certification, you don’t have to count it as FMLA leave– Make sure the employee didn’t tell someone in HR or

management about their condition. If they did, the leave may be retroactive and your out of FMLA compliance

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