Alphabet Soup and FMLA Abuse

Supervisors must ensure compliance with FMLA law while also preventing leave abuse by employees. These are some tips to help navigate the process.

If you are a supervisor in government service you have a tremendous responsibility to get whatever your program assignment is, but also to manage a workforce to accomplish that task.

HR Alphabet Soup

Aside from being technically proficient in your chosen field, you also have to know LMR, ER, FLSA, ADA, FMLA – in other words the alphabet soup of regulations – plus many more.

The alphabet soup of employment laws is getting more complex with case decisions. One small misstep can cost you an enormous amount of time that you do not have, but you must take to defend your decisions and/or actions. 

Moreover, if you have indeed made an error, the opportunity cost to defend and now coupled with settlement awards or back pay with attorney fees can cost your agency a lot of money. Managing within the law requires that the supervisory staffs at all levels get the necessary training in these areas.

Alas poor Yorick, there is the rub. This training is just not happening; just ask the Department of Labor.

Non-Compliance with Fair Labor Standards Act (FLSA)

DOL is the gate keeper for investigating the private sector’s compliance with the Wage and Hour laws as well as FMLA. Twice since 2004, DOL has paid out nearly $14 million in back pay and attorneys’ fees for noncompliance with FLSA. They are not alone. HUD, Army and others have their agencies on the wall of shame. 

While the federal service only came under FLSA since 1974, pay-related lawsuits in the United States have tripled in the past decade. Technology has caused many of these lawsuits. Employees can perform work now from anywhere, at any time, and if that employee is non-exempt, his time away from the office is just as compensable. 

Do your telework agreements require and state that an off-site employee cannot work overtime without prior advanced management approval? And, what do you do if a non-exempt employee claims overtime on his time-sheet that was not requested or approved in advance? Can you deny the payment?

The answer is no, under FLSA you must pay the person. However, you can discipline a person for failing to follow supervisory instructions should it happen again. Be sure these instructions are in writing to all of your direct reports. 

I would ask this question of many HR students that would come to one of my classes on FLSA. The answer I would get is preponderantly a blank stare or I do not know. These are unacceptable answers. 

Family and Medical Leave Act (FMLA)

Now, let’s look at the Family and Medical Leave Act (FMLA). 

To most supervisors, FMLA stands for the Friday Monday Leave Act, and often they are right. But who has the responsibility to monitor such leave to ensure that it is not abusive?

The short answer is the supervisor. This is not just a summertime problem, but if you live in snow country near mountains, this pattern also occurs in the winter for those who enjoy winter sports. 

There is a host of case of law decisions where employees out on FMLA leave have been tripped up by social media who have posted photos of themselves enjoying a vacation on the beach when it is winter back home, or with the family during school vacation week at Disney World. 

The majority of case law decisions have not sided with employees who are committing FMLA fraud. Can you institute policies that prohibit employees from leaving their commuting area without notifying their agency while out on FMLA leave? Indeed, if the purpose of the trip is for medical reasons, then the answer is obvious. 

Many of my colleagues think I have been smoking funny cigarettes in retirement (I quit smoking 31 years ago) because I know of nothing in law rule or regulation that stops an agency from implementing such a policy. If you have a labor union, the “impact and implementation” of such a policy would be negotiable. 

Can you prohibit an employee out on FMLA leave from working at a second job while taking FMLA? 

My answer is the same. I know of no prohibition from having such a policy. 

Keep in mind the purpose of FMLA leave: It is intended for that employee who has a “serious” health condition that precludes her from reporting for duty, or if there is an immediate family member whose serious health condition requires care from a family member. 

I once worked for a training organization in DC, and I informed them that I was diagnosed with cancer, required surgery, and I needed to invoke FMLA. I never heard back from them acknowledging my request, and to request that I furnish medical documentation. 

Their apathy and ignorance was in noncompliance with the law. Worse yet, they contacted me within a week after surgery to see if I could go on the road to teach a course. 

Again, this was clearly an interference with my FMLA entitlement. It is imperative that when an employee requests FMLA that you acknowledge the request and request that the employee furnish the agency with medical documentation to justify the absence. If this documentation is not forthcoming within 15-days, then you need to once again request that it be provided. If it is not provided, you can legally deny the leave. This medical documentation on the DOL WH-380 form is your best friend to manage this person’s absence whether it be 480 hours consecutively or intermittently. 

Supervisors who are not trained properly are more likely to cause HR problems, or to cause HR problems because they are unwilling to act at all. 

Tools to Correct FMLA Abuse

Fortunately for employers, there are tools available to correct FMLA abuse. Here are some that have been proven successful.

Get FMLA Requests in Writing

Require that all employees complete a written leave request for all FMLA absences, and require that they furnish a medical justification for their absences. A note from a physician just saying that the employee is under the physician’s professional care is not sufficient; it does not tell you that the employee’s condition is serious enough to be unable to report for duty. 

This documentation should come back to the HR office or an agency’s medical personnel, if they exist. A supervisor cannot receive or retain this information directly under HIPPA.

Have a List of Questions for Supervisors

Prepare a list of questions a supervisor has the right to ask when any employee requests time off. 

  • What is the reason for the absence? 
  • What essential functions of the position can the employee not perform? 
  • Has the employee seen his/her health care provider?
  • How long does the employee expect to be incapacitated?
  • When does the employee expect to return to duty?
  • Remind the employee of any call-in policies that he or she must comply with.

These are legitimate questions management has a right to ask. Too often they are not asked because it takes many supervisors out of their comfort zone, and this is where training can help. Policies are not policies if they are not routinely followed.

Enforce all call-in procedures

These procedures help a supervisor to manage the employee’s absence, and to address coverage and staffing issues.

Certify and Recertify

This is one of the best tools an employer can use to fight FMLA abuse. 

When the medical documentation does not sufficiently answer the questions about the legitimacy of the request, then communicate with the employee to cure the defect. 

Your correspondence should be specifically clear as to what is unanswered or incomplete. Give the employee a specific deadline to comply (7-calendar days is viewed as the minimum time.) Seek the employee’s permission to have some other agency medical person contact his or her health care provider for clarification. 

Personal Certification from the Employee

Have all employees complete a personal certification upon their return to duty that they actually took the leave for the stated FMLA reasons. Also, you may request that their health care providers furnish a statement that the employees are able to return to full or part-time duty. 

This approach should be obvious. An employee can be disciplined if his leave is inconsistent with the medically stated reasons. This inconsistency can be viewed as falsification of employment records. 

Do not state that the employee has abused FMLA. Here, you simply state that the employee’s lack of candor caused you to make a decision that is contrary to the efficiency of the service.

Periodically Check in on Your Employee

This is not intended to be a “gotcha” approach, but one of care, and one for which you need to make workflow considerations. It is illegal to ask an employee to perform work when she is out on convalescence leave. 

Chart Leave Patterns

For someone on intermittent FMLA leave, chart the patterns of leave. 

Is the leave closely timed to a Monday, Friday, or a holiday? Such a pattern can suggest FMLA abuse. 

Here you can ask the employee’s health care provider (29 CFR 825.308) to confirm that the pattern of leave is consistent with the employee’s health condition and need for leave.

Schedule Medical Treatment Around Your Operations

For intermittent leave, schedule medical treatment around your operations. 

It has been my experience that employers have abdicated and given up on this requirement, and an area of the law that allows management to control the workplace to promote efficiency and attendance.

Know the Regulations

Lastly, become very familiar with both OPM’s FMLA regulations in 5 CR 630.1201 and the Department of Labor’s regulations in 29 CFR Part 825. OPM’s regulations are quite bare bones when compared to DOL’s. 

FMLA requires that OPM prescribe regulations for the administration of title II that “shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary of labor to carry out title I” of the Act.  

For federal employees covered under its provisions, title II amends Chapter 63 of title 5, and the statutory cite for the requirement to follow DOL regulations can be found specifically at § 6387.” Thus, if OPM’s regulations are silent on a particular FMLA issue, then the practitioner is directed to look to the DOL regulations for guidance. 

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.