Hey Compliance Warriors!

We’re talking FMLA again this week. This time discussing 8 tips when dealing with intermittent leave abuse.

Don’t forget to rate, review and subscribe on Apple Podcast, Spotify, or Stitcher!
Enjoy and until next time, Be Audit Secure!



Lisa: Today we are talking about intermittent FMLA abuse.


Mason: Oh yeah. This can be a common thing that happens in the workplace. So, we’re Gonna kind of talk about some tips that you can take if you’re going through this process.


Lisa: Yeah, absolutely. And so just kind of to start out, just so that you’re clear on what we’re talking about, FMLA is when you have, generally speaking 50 or more employees and then you have a covered condition. You’re able to take time off without pay, but your job protected. So usually you can’t be terminated during this time. Now, a lot of times what happens is employees don’t just take 12 straight weeks, they take a day here, a day there, an hour here, an hour there, and over time it begins to kind of look like maybe they’re abusing the system that maybe they don’t really have this coming and employers kind of sometimes tend to just lose control of the reigns. It can act like a runaway horse.


Mason: Yeah, It can just kind of build up a lot over time.


Lisa: Yeah. So, this sporadic type of leave, can really be an administrative headache. We have about eight tips today that we’re going to go over to help you get a hold of that.


Mason: That’s right. So, we’ll start with our first one. It’s questioned the original certification.


Lisa: That’s right. Straight out of the gate, employers can get the illness certified from a doctor to make sure that it’s covered, and it is under FMLA guidelines and so forth. But employers aren’t required to do this. They just can. And so unfortunately a lot of times with the intermittent staff, it tends to sort of just pop up. And we don’t get ahold of it fast enough. And so we’re not, getting that certification or if we are, we’re not looking at it closely. It’s missing information. It may be vague.


Mason: Yeah. If something comes in, if you get like a doctor’s note that kind of looks vague and kind of funny. You might say, what can you do about this Do you have to accept that as a doctor’s note because it has a doctor’s signature on it Or can you question it?


Lisa: Yeah, you can absolutely question it. Now you can contact the healthcare provider and you can say, number one, did you actually do this certification Making sure it’s their handwriting, their signature, and they will say, yes, we supplied the patient with that, or no, we don’t even know what you’re talking about. It’s a good way to confirm that. Now they will not, give you any diagnosis information, anything like that. And the employee’s direct supervisor is not going to be the one who contacts this provider. This is going to be someone from HR.


Mason: Gotcha. Okay. So, without breaking HIPAA, you can look into it and get a little more information to make sure what’s going on here is valid. Okay. For our second tip here is ask for a second opinion.


Lisa: Yeah. So okay, you’ve called the provider, now you’re have a little bit of wishy washy information. You’re not sure if this is valid. So, you can say, listen, we’re going to go ahead and get a second opinion on this and you have to pay for that. The employer has to pay for that. So, this is not coming out of the employee’s pocket. But, You can certainly do that. And if the first and second opinion don’t agree, we’ll then of course you can get a third opinion to be a tie breaker.


Mason: Yeah, exactly. So, you get one opinion back and it’s like, okay, this is what it is. The second opinion comes in as something totally different or maybe just something a little bit different. You have to pay for that third opinion. And if that third opinion comes back totally different, then you know something’s really funny going.


Lisa: Yeah, that’s going to be insane if that happens. But here is a problem that, just in this very first two tips that we’re giving here, this is where your, stick to it I guess as an HR pro, will really act to curb the abuse immediately. If you show the employee, we’re going to put you through the paces, and it may not be worth it to grab an hour here or there and fake it. It may be like, oh my goodness, they’re going to make me actually do this right, and I can’t do this Right. So, there goes the abuse.


Mason: Yeah, you don’t really want to scare your employees, but if there’s a situation going on, you can use that to kind of like, hey look, we’re looking into this. We’re going to be on top of you about this.


Lisa: And it’s not just one person You’re doing this too. You’re making everyone walk this line.


Mason: Right, it’s not going to be a discrimination thing. That’s just how you run your organization


Lisa: Yeah. We just make you follow the rules.


Mason: Okay. So, the third tip is ensure that all absences related to the condition are counted.


Lisa: Yes. And so this is another area that it kind of feels like a runaway horse or a freight train or something because when you have this hour here, hour there, half a day here, half a day there, we can forget to be writing this down or, not calculating it properly or not deducting it properly. And this is another problem because employers a lot of times, look at that 12-week thing. And so, they start trying to calculate 12 weeks’ worth of absences, but if you’re doing FMLA right, you’re calculating 12 weeks and the equivalent number of hours. And that doesn’t always mean 40 hours X 12 is 480 hours a year. It doesn’t mean that. You could have a person who only averages or who I should say only, but who averages 50 hours a week. They’re going to get 600 hours of FMLA. Because when you do 50 hours a week X 12 weeks, they’re going to get 600 hours because they have an average of a higher weekly amount. So, when you’re deducting, they took an hour here, they took two hours there, make sure you start with the right number. And that’s where a lot of times it gets away from us.


Mason: Yup. Okay. So that leads nicely into our next tip, which is require employees to follow your paid leave policy. Do you have a paid leave policy? Is the question here.


Lisa: Oh yeah, man, that’s a great question. And if your employees have, if you have paid leave and PTO bank or whatever you want to call it, sick time, vacation time, then, you’re already accustomed to taking that out by the hour or whatever increment you use. And so, somebody takes an hour of FMLA, make sure you’re docking that hour of PTO, and then of course you’re going to pay them for that hour. And then when they run out of PTO, then if they take an hour of FMLA, you’re going to dock that hour to make sure your numbers are correct. But don’t forget, that’s not automatically paid. So, when they run out, they run out. And by not letting that get away from you, that will also help curb that abuse. If people figure out, Oh, I’m not getting paid for this anymore.


Mason: Yep. So have good policies and keep good records. Next is request re-certification.


Lisa: Yes. And so, you can request re-certification every 30 days in connection with absences related to long-term conditions or conditions that may require sporadic absences, which is what we’re talking about in your FMLA. So, let’s say that I’ve got migraines and you get that certification. And I’m here and there and everywhere. I’m taking an hour here and two hours there and a half a day here. So, I’m doing all of that. Now 30 days runs out and I’m still dealing with this migraine issue, which is very common. Then, well let’s go ahead and just go ahead and get that re-certification. So, if I’m having a tendency to fudge a migraine and say, oh my head hurts when it really doesn’t and I’m not making fun cause migraines are no joke. But I am saying if you suspect abuse, this is one really heavy area because you can’t tell someone they don’t have a headache. You can’t test for that.


Mason: Yeah And that’s kind of a little tool you can put in your toolbox is that request re-certification thing. And employers might even know that you can do that every 30 days. So that’s a really good tip to have. So, the next one would be follow up on changed or suspicious circumstances.

Lisa: So, keep your eye out on the use of FMLA and take a look at patterns and you want to make sure that of course you’re getting your 30-day certifications and everything. But, if you’ve got doubt being cast over what the actual problem is and you’ve got this one 30 day certification, but now the problem seems to be changing a little bit. You may not have a certified thing anymore, so you’re going to have to maybe send them for another certification. One thing that you want to remember with people that are too lazy to work is they may also be too lazy to follow through with all of your paces that you put them through. If my head is really hurting and I need that time off, man, I’m going to get you what you need to make sure I’m covered, but if I’m just trying to blow it off and go to the ice cream parlor for the afternoon, it might just be too much work for me to jump through all those hoops and have you find me out in the end.


Mason: Yeah, that’s right. So, keep following up. Don’t be too nosy about the situation, but Hey, as far as these concerns they’re wanting you to pay them for work, they’re not going to do. So, know that’s something you can definitely keep an eye on and keep in touch with. The next one is control The way that employee is scheduled Planned treatment.


Lisa: Yeah, and so like there’s going to be intermittently required and sometimes it will happen for therapy, doctor’s visits, various things like that that are legit Right. Now FMLA requires an employee schedule those absences for the planned treatment in a way that is, most convenient for the business. And so, make sure that if they say, Hey, I’m going to go to physical therapy every Wednesday at two o’clock and if that’s your busiest time, you can have the input to say, Hey, could we shoot for, Wednesday at four o’clock or could we shoot for Tuesday at 10:00 AM Or like what might be, and if the employee gets an attitude and acts like, Hey, this doesn’t concern you, pull out the statute if you need to because we don’t want to be ugly. We don’t want to like cause confrontation and just be like, we’re the tyrant with the FMLA, Thor hammer, like what we do. And we’re giving them job protected, unpaid time and we just need a little help on our end. And the government said, that’s okay. We deserve that help.


Mason: Cooperation.


Lisa: There you go. Cooperation. It needs to be a win win.


Mason: Yup. That’s right. The eighth and final tip is considered temporary transfers.


Lisa: Yeah. So, we’ve got intermittently, it’s foreseeable. We’ve got like, it’s going to go on and on and on. It’s going to recur. Maybe there’s another position with this is important equivalent pay, equivalent benefits, equivalent shift, all of that. But it could be a different job that the person is also qualified to do. So as long as they’re not risking any pay or shift or benefits or anything like that, FMLA says switch it around. If it’s easier on your company, then go for it. So we can definitely throw that out and make that an option that we consider if the employee doesn’t like what we’re offering to them and we have legitimate reasons that we need to do this, not just because I don’t like you and I’m going to make your life miserable, but I mean, literally it, this is legit. Then there can’t really be much of an argument on the employee side because we’re doing what we’re supposed to. But again, it’s all about cooperation.


Mason: Yeah. And especially if it’s in a suspicious circumstance, your kind of throwing that out at them and they’re doing this a lot. They don’t want to leave that position. You know, they’re probably gonna change their way of action.


Lisa: Yeah, and you’re right. Again, if they’re too lazy to work, they’re probably too lazy to jump through your hoops. And I hate to say it that way, but let’s get real. This is what we’re talking about when we’re talking about abuse. We’re talking about borderlines theft here. And we want to like have a good attitude, but also we want to be careful and HR is hired to protect the company just as much, if not more than we are to protect the employees. And so again, we want it to be a win-win.


Mason: Yeah. And the key here really is to follow these guidelines, but don’t be hateful, don’t be controlling. Don’t be mean, don’t be discriminatory, at the end of the day because some things can be perceived just cause the way you don’t like things and those different things. So, protect yourself, but also be reasonable and willing to work with this and employee while following these guidelines.


Lisa: Absolutely. And I know that my tone today has been frustration, frustration, frustration. But you know what I did this partly on purpose. I mean, as an HR pro, you get a little tense when this topic comes up. But, i did this to today with this sort of an attitude because I know that our listeners are dealing with this and they’re writing me like every week and they’re saying, I’m so frustrated. What do I do? So I’m trying to reflect what that feels like, but also to say but wait But listen, we do have to be fair and we do want to do our best and if we’re frustrated it might be our own fault because we’re not following these eight tips.


Mason: Yeah, this can be something that can really help you to get through a frustrating situation while keeping a cool head. Great, Well I think that wraps it up for this one and we’ll get back to a next week.

Log in or Register to save this content for later.