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FMLA Abuse

Many employees are eligible for FMLA leave, but too often employers find themselves in situations where their workers are using it improperly, not as the U.S. Department of Labor intended. Employees are not obligated to specifically cite to the FMLA as a reason for their absence, therefore the FMLA then places the responsibility on employers to determine if FMLA leave is in use. Employers can usually become bogged down by having this burden put on them, but there are some common practices to aid in avoiding employee misuse and abuse of FMLA leave.

First, employers must learn what the reason of the employee absence actually is in order to determine if the employee is pursuing a leave of absence that could be protected by the FMLA.

Sometimes, however, employees can make it difficult for employers to determine the actual explanations for their absences. As the leave of absence request is processed by an employer, he or she should consider if the information provided by the employee specifies:

  • If the employee will possibly be absent for more than three consecutive days, and unable to work during those three days
  • If he or she is suffering from a chronic condition that can cause recurrent problems throughout an extended period of time
  • If the employee is caring for a family member with a potential serious health issue
  • If the employee is suffering from complications because of a pregnancy

These four main reasons are crucial starting points in determining what the obligations are, as an employer, for granting a specific kind of leave of absence under the FMLA regulations.

Second, notification of the necessity of a leave of absence by an employee is significant in helping to determine whether or not an employee’s absence qualifies as FMLA leave. If an employee’s reasoning for an absence noticeably does not prompt any FMLA requirements, for example, “I’m feeling sick today,” an employer can simply implement his or her usual attendance policy with the absence and take the necessary, appropriate action.

Employers do have a right to know why their employees cannot work. A variation of exploratory questions could be useful to employers when speaking with employees when they call in to report an absence. Throughout the conversation with the employee, employers should specifically ascertain information about not only the reason for the absence, but also when the employee first realized a leave of absence would be necessary, what job duties the employee will be unable to perform, whether or not a visit to the doctor will occur or if the employee has previously suffered from the same medical condition, and the estimated date that the employee will return to work.

Finally, employers can manage FMLA leave for employees by looking at patterns in employee attendance for any particular employee. If the requested absence seems to be part of a peculiar pattern of absences that occur on Fridays, for example, then employers could be more inclined to not term the employee’s leave as “FMLA”.  FMLA guidelines allow employers to give the pattern of absences to the employee’s healthcare provider and question whether this pattern is consistent with the employee’s need for a leave of absence.

The FMLA does not excuse employees from meeting their job requirements or from following company policies. If employers require employees to call before missing work, then they can also require those employees on FMLA to do the same.