The Family and Medical Leave Act: Curbing Intermittent Abuse

The author outlines some common scenarios he has seen employees take to try to “game the system” when using FMLA and some solutions for dealing with them.

Whenever you have entitlement programs, you always have someone who will try to game the system.  I apologize if that sounds cynical, but I have found it does occur, and management pays the price unless it is willing to hold people accountable, and to apply the law. 

Unfortunately, too many managers follow the law of physics when it comes to electricity – they will take the path of least resistance.  That path will only promote inconsistency and problems.

While the Family Medical Leave Act (FMLA) is an entitlement law, it is not just one-sided, and if management does not exercise its rights under the Act, it can, and will lose control. 

The FMLA does allow employees to take leave in small increments to attend medical appointments, and other medically necessary therapy sessions, e.g., cancer treatments, physical therapy for an injury, etc.  It is almost a universal truth that managers find intermittent FMLA leave to be the most troublesome.  It is disruptive to planning and completing assignments and it can give the appearance that someone is being allowed to have special privileges, all of which can damage an organization’s productivity and harmony. 

Michael Eastman from the US Chamber of Commerce once remarked that “The law is used by people with attendance problems.”  If that is so, then management has allowed this condition to develop.  That does not have to be the case with proper planning and execution.  That is why managers can and should demand medical certifications for FMLA leave issues, particularly intermittent leave.  Unless this medical documentation is provided, FMLA leave does not have to be authorized.  There has to be an interactive process, and the burden is upon the employee to provide what the law requires. 

Providing medical certification that a person is under a doctor’s care is not sufficient.  The medical documentation must go beyond that.  One of the major questions that must be satisfied by the medical certification is whether the employee is incapable of performing the essential duties of their position; what is the likely duration of the employee’s incapacitation; whether the leave will be needed on an intermittent basis or some other reduced work schedule; the probable number of therapy sessions; the anticipated treatment schedule to include the actual dates of treatment, if known; and when it is anticipated that the person may return to a full schedule.  For these reasons, the regulations allows management to attach the employee’s position description of the essential functions for the medical provider to consider and frame the medical conclusions. 

The Department of Labor developed the WH-380 form for this purpose, to be filled out by the relevant health care provider. To access these forms, go to the Wage and Hour Division’s website.

Supervisors and managers are strongly encouraged to use the Department of Labor forms.  The use of these forms provides far more consistency and documentation, and the medical community has become accustomed to completing them.  Title II, employees must provide medical certification of a serious health condition within 15 calendar days of the agency request, which may be extended to a total of 30 days by the agency if the 15-day deadline cannot be met despite the diligent, good-faith efforts of the employee.  Under Title I, the employee must provide the requested medical certification “in a timely manner”.

Assuming a request for FMLA intermittent leave has been approved for physical therapy of a broken leg, the employee, who is out of sick leave, may not use the FMLA intermittent leave for other medical appointments unrelated to their broken leg.  The FMLA leave may only be used for the specific reason documented by the medical certification.  If the employee wishes to expand it for some other “serious illness”, they may do so only by providing further medical certification for the secondary condition. 

Use of the medical certification is management’s biggest tool to deter the misuse of FMLA leave.  And, if that certification is of a dubious nature, management can obtain, and should obtain, a second or third opinion from an independent physician.  The law permits these additional medical reviews, if necessary. 

Another major component of tracking FMLA use is the proper recording of leave.  In today’s technological world, there is no good reason why the accurate recording of FMLA leave cannot be achieved.  The bi-weekly certification of payroll should not be a perfunctory exercise, and if there appears to be improper time charges, these should be immediately challenged.

There are several steps you can take to manage intermittent FMLA leave and to curb leave abuse if suspected:

  • Have a doctor certify all requests for FMLA leave using the DOL WH-380.
  • Make limited inquiries once a certification is received. The purpose is to determine that leave taken is for the same qualifying reason.
  •  Have the employee recertify the intermittent condition every 30 days, unless the original certification covers an extended period of treatment, e.g., chemo or radiation treatments.  Such recertification is at the employee’s expense, and can serve as a strong deterrent.  
  • Insist that the employee work with you in setting up a schedule of treatments that is the least disruptive to the workflow.  This may include an adjustment of work schedules to accommodate both the employee’s and agency’s needs.
  • Reassign the employee to a different position if such a reassignment would be less disruptive.  The law permits this as long as the pay and benefits are equivalent.
  • Enforce all of your leave procedures, and use your disciplinary procedures for anyone who is not compliant.
  • Establish an agency policy stating that all outside employment must be approved by Counsel, to ensure compliance with the Ethics in Government Act.
  • Include in your policies and procedures statements that anyone on FMLA cannot concurrently work for some other employer.  The FMLA Act does not preclude you from doing this.
  • Monitor and look for obvious abuse patterns such as Monday/Friday patterns, absence before or after a holiday, unexplained absences after lunch.  If a pattern raises suspicion or casts doubt, ask for recertification of a claimed medical problem.
  • Keep training your managers.  I have found that first-line supervisors are often ill-trained, and this lack of knowledge causes them to be hesitant when they should be proactive and involved.  Agencies lower their risk of litigation and costs when their managerial staff are properly trained on the “dos and don’ts” of FMLA.

Two of the above suggested activities involve outside employment.  Have you ever examined the leave records of an accountant or auditor during tax season, an avid skier during the winter, working as a ski instructor to acquire free lift tickets, or a baseball/football fan who has tickets, and the game goes into extra innings late at night, or a post Superbowl FMLA request?  Are these implausible?  My only regret during my career is that I did not maintain a diary of the various activities by ingenious people trying to exploit the system. 

The above proactive actions can serve as a deterrent to people who are inclined to take inappropriate advantage of a lax environment.   FMLA is an entitlement program when a legitimate need arises.  However, management is not without resources to correct abusive or fraudulent behavior, and a combined effort by human resources, counsel, and front-line supervisors can administer a program exactly as the law intended, and your actions will have a very positive return on your investment of time.  

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.