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Preventing Leave Abuse: Taking steps to get the most out of your workforce

An employee with a phony headache often becomes a genuine headache for a company. Leave abuse can lead to unnecessary overtime costs, low morale and loss of productivity, among other frustrations. Employers, however, are not without means to combat this problem.

Although a number of statutes implicate employee leave—such as workers’ compensation statutes and the Americans with Disabilities Act—this article focuses on the two most generally applicable sources of an employee’s right to take leave: the employer’s own policies and the Family and Medical Leave Act (FMLA). To maximize a company’s ability to combat leave abuse, it should implement effective leave policies and be aware of certain tools available under the FMLA.

Company policies

It is always better to prevent a problem from happening, rather than trying to fix the problem once it occurs. This principle applies to effective leave policies as a strategy to avoid chronic leave abuse. Although there is no silver bullet, the following are suggestions for leave policies and practices that employers should consider:

Distinguish between “excused” and “unexcused” absences. Any absence that occurs without the employee complying with all of an employer’s prerequisites for granting leave should be deemed unexcused.

Require employees to provide adequate notice before leave is taken, unless it is a medical emergency and prior notice is not possible. Even where there is a medical emergency, however, employers should require notice as soon as practicable.

Identify a specific and trusted individual—preferably an HR professional—that all employees must notify to take sick leave. This will ensure the company’s policies are consistently applied.

Establish clear, written disciplinary measures for unexcused absences and apply them consistently. The key here is that the discipline needs to be clearly articulated to all employees. A vague and inconsistently applied policy will not dissuade the recalcitrant employee as effectively as a policy that informs the employee of a negative consequence that is certain to follow an unexcused absence.

Faithfully document absences and record whether the absences were excused or unexcused.

Consider programs that reward good attendance. Employers should consult with counsel when implementing such a policy, however, to avoid improperly penalizing employees taking protected leave.

FMLA

Employers have a number of avenues available to them under the FMLA to ensure an employee’s leave is proper. First, as a prerequisite to obtain FMLA leave, an employer should require employees to provide notice to the full extent permitted by the FMLA, which is 30 days’ notice for foreseeable leave (e.g., planned medical treatment or expected birth or adoption) and “as soon practicable” for reasons that are not foreseeable, such as a medical emergency.

Second, an employer should require employees to comply with its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. If an employee does not comply with the employer’s usual notice and procedural requirements—and no unusual circumstances justify the failure to comply—it may be permissible for an employer to delay or deny FMLA-protected leave.

Even when the employee provides proper notice for the leave, the employer should require an employee to provide medical certification to substantiate the needed leave if it is for a serious health condition. If an employer has reason to doubt the certification is valid, it may require a second opinion from a healthcare provider of its choosing, provided the employer does not use that healthcare provider on a regular basis. If the opinion of the second healthcare provider differs from the first, the employer may require the employee to obtain a third certification from a healthcare provider to which the employer and employee mutually agree. The third healthcare provider’s opinion is final. It should be noted that the employer is responsible for paying for the third and second opinions, and the employee is provisionally entitled to FMLA leave while submitting to the second and third opinions.

Recertification of the medical condition is also something employers should consider as a tool to prevent leave abuse. The general rule is that an employer may request recertification every 30 days, provided it is in connection with an absence by the employee. That general rule, however, comes with two important caveats. First, if the original certification indicates that the minimum duration of the serious health condition is expected to last longer than 30 days, the employer cannot require recertification before that time period has lapsed. Second, an employer may request a recertification in less than 30 days if (1) the employee requests an extension of his or her leave; (2) the circumstances under the previous certifications have changed; or (3) the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the medical certification.

Conclusion

Although leave abuse is a recurring issue, employers can combat this problem with effective policies and by maximizing the tools available to them under the FMLA. As this area is rife with issues implicating a host of intersecting statutes, employers should consult with counsel before denying leave or taking disciplinary action because of absences resulting from medical conditions.

Nothing in the foregoing should be construed as legal advice.

Stelter_JudsonJudson (Jud) D. Stelter is an associate in the labor and employment relations practice group in the Salt Lake City office of the law firm Michael Best & Friedrich LLP. He regularly advises management in all phases of employment-related matters.