Caraway, who is a member of Miller & Martin PLLC, in the Chattanooga office, offered six tips for reducing FMLA abuse during a recent webinar sponsored by BLR. Here are tips four to six for dealing with FMLA abuse.
[Go here for tips 1 to 3]
Tip #4—Planned vs. Unplanned Leave
It’s important to pay attention to the issue of planned vs. unplanned leave, says Caraway. Explain in your cover letter the difference. Specifically, state that it is the employee’s responsibility to coordinate any planned intermittent leave with his or her supervisor in advance, unless it is not medically possible to do so.
Note that a pattern of “unplanned” intermittent leave may be an indication that the leave actually is and should be treated as “planned” leave (coordinated in advance with the supervisor, possibility of requiring transfer, etc.).
For example, say Joe is approved for unplanned leave but has a pattern of Friday absences. You go back to the doctor and it’s a win-win:
If the doctor says, “Yes, that Friday pattern is medically necessary” (for example, Joe’s wife has to have her chemotherapy on Friday so she has the weekend to recover), Joe’s leave has changed from being unplanned to planned.
If the doctor says no, you’ve got the grounds for fraud.
Tip #5—Moonlighting
Since FMLA is unpaid, it’s not unusual for employees on leave to want to work another job. If you don’t have a moonlighting policy, there’s nothing wrong with it, unless the person is doing something that violates his or her medical restrictions. (That’s not just about working at a job, says Caraway. It’s the same whether it’s a job or refereeing a soccer game or mowing the lawn.)
If you do have a policy against moonlighting while on unpaid leave—and it can’t be just for FMLA—you can enforce the policy.
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Tip #6—An Informed Voice
Contrary to some FMLA “urban legends,” there is an appropriate role for supervisors and even coworkers to help curtail FMLA abuse, Caraway says. Specifically, nothing in the FMLA prohibits supervisors or even coworkers from reporting what they believe to be FMLA abuse or fraud.
But train supervisors and coworkers to say just the facts. For example, “Dear HR, I saw Janice working at Walmart.”(Don’t add, “I told you she was a cheating liar.”)
There is no privilege for those who report suspected FMLA abuse, so caution employees not to add editorial comments that could lead to the employee being individually liable.
You can also help supervisors by providing them with general information about approved FMLA leaves, says Caraway:
- Who the leave has been approved for (employee vs. family member and if so, which family member).
- For what period the leave is approved.
- Whether it is intermittent or continuous.
- Whether it is for planned and/or unplanned events.
- A general description of the illness/injury. You don’t want to be specific (“Jim is bipolar”), but you can say, Jim has “personal issues” or “physical issues” that are approved for FMLA leave.
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About Your Lead Author:
Susan Schoenfeld, JD, is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, and sexual harassment. She provided training and counseling to corporate clients and litigated cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. Prior to private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor (DOL) in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the DOL. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.
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