1. Non-Disciplinary Conversation
Your first step to should be to find out why the employee’s absences have increased, or are always on Fridays, or whatever the other suspicious pattern may be. Meet with them to ask them more about it in a non-disciplinary way . . . “Tell me about what’s happening on Fridays that causes you to be absent” or “It looks like your absences have increased. How are you feeling?” You may find out that they scheduled their physical therapy appointment every Friday or that they developed a complication that has caused more flare ups. In those cases, have them get an updated certification form, work with their department manager to see if they can do anything to accommodate them, and move on.
If you follow the first step, and there’s not a valid reason for their suspicious pattern of absences, or you sense that they’re not telling the whole story, you can ask them to recertify their FMLA leave. Recertification includes a new Certification of Health Care Provider form and an attached document for the doctor stating the employee’s absences and asking if they are consistent with the employee’s condition and/or symptoms. Set a due date and state that the consequences of not recertifying their leave is denial of their FMLA leave, meaning that all absences will be subject to the company’s attendance policy.
3. Last Resort Options
If they comply with the recertification request but there’s still doubt about their intermittent FMLA usage, there are other measures you can take. You can send them for a 2nd opinion (the company pays for it). If you use this option, be prepared to send them for a 3rd opinion if the 2nd opinion doctor disagrees with the employee’s doctor. The other option is to hire a private investigator. You would use that option to try and determine if the employee is using their FMLA days for recreational activities instead of nursing their flare up. Use caution with either of those methods and consult with your legal counsel on the best ways to execute.
Important: Always use a “good faith” method when making decisions about an employee’s FMLA leave or suspected abuse. Courts have found in favor of employers who showed “good faith”.
We hope you enjoyed reading our article on 3 Steps to Addressing FMLA Abuse.
Leave Solutions is based in Milwaukee, WI and helps employers with their FMLA and leave of absence processes from a Human Resources perspective.
Contact us today at email@example.com if you have questions on addressing FMLA abuse or other topics.