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HR Must Take Proactive Steps To Curb FMLA Misuse

September 1, 1994
Related Topics: Employee Leave, Featured Article
Think fast: An employee returns to work on Monday after six months on workers' comp leave. On Tuesday, he tells you that he needs to take another four months' FMLA leave. What do you say? How about this: An employee with a history of poor performance ratings is about to be terminated from the company. The day before you inform her, she informs you that severe emotional stress will require her to take time off. Her poor performance history also includes several cases of falsely reported sick days. Can you turn her down? Can you terminate her? Try this one: A new father wants to stay home with his child in the mornings. However, his job as a sales rep receives its highest level of business in the mornings. What do you say?

Welcome to the second stage of Family and Medical Leave Act implementation. You've rearranged your leave plan to accommodate the 12 weeks of unpaid leave required. You've posted the necessary notice of FMLA rights. You've probably even had a few employees out on FMLA leave already, and juggled duties until they returned to their former positions, as mandated. But that, as many employers are discovering, is only the beginning. Because unless you tie up all the loopholes provided by this act, you may be in for an unpleasant surprise. Unless you make 100% sure your supervisors understand this act, you may invite trouble. Bottom line: If you don't make it your business to keep current and confident on the provisions of the FMLA, you're allowing this employee-friendly bill to be misused and misunderstood. What was intended to be a shield may become a sword, with the employer held as captive.

The FMLA tends to be an underestimated law. Described by many as a "feel-good" initiative, it's often pushed to the back of the compliance to-do list, shadowed by the toothier Americans with Disabilities Act (ADA). It is true that other employer mandates have a harsher bite. The Department of Labor's FMLA action to date has been focused more on resolving cases than on penalizing wayward employers: In the first half of fiscal year 1994, the DOL resolved 278 of 302 violations. Outcomes involved payments of back wages, restoration of benefits, and returns to former positions rather than harsh penalties. However, signs loom on the horizon that the DOL is tiring of issuing stingless reprimands. J. Dean Speer, director of policy and analysis for the Wage and Hour Division, has stated that his division, which oversees the FMLA, is encouraging the labor solicitor's office to begin pursuing FMLA cases "to establish a presence." And many predict that, although FMLA lawsuits won't reach the proportions of some of the civil rights litigation, they will make more than a ripple. Employers who hope to reach compliance through trial and error may get themselves into trouble along the way. "There will be enough lawsuits that employers should not put it on the back burner," says Janice Stanger, an associate with the San Francisco office of William M. Mercer. "They want to look at compliance in a proactive and intelligent fashion."

And, unfortunately, non-compliance is only one potential snag. On the flip side of this issue is over-compliance: Many companies, all too aware of our litigious society, follow the dotted line to correct implementation, and on the way allow employees to get away with more than the law ever intended. And it's easy to see why—the FMLA favors the worker. Consider this: When someone is about to be hauled off to jail—denied liberty—the arresting officer must read the person's constitutional rights. Yet the employer must provide a worker his or her FMLA rights in writing.

Some abuse can be prevented, some can be curbed.
Certainly most employees will use FMLA in the spirit in which it was intended. It's not as if masses of spiteful workers are eyeing the Act and plotting its abuse. Yet intentional misuse of the FMLA continues to surface.

Abuse has become a serious issue only recently. Early on, the FMLA had enjoyed a period of good will atypical of most new legislation. For instance, a 1993 survey conducted by the International Foundation of Employee Benefit Plans revealed that of almost 100 respondents, only 1% felt they'd experienced intentional abuse of the Act.

It's likely that companies themselves gave the current abuse an inroads by not focusing on its prevention in the infancy of the FMLA. For instance, a 1993 Hewitt Associates survey revealed that of 628 employers, only 18% were concerned about potential abuse by employees. More were worried about administrative questions, such as recordkeeping. Such inattention has left the door open for the abuse—and concern over abuse—that we see now.

"There is a lot of fear among our members that their employees will take advantage of the situation and will try to take time off for conditions that aren't covered by the law or aren't authentic," says Mary Reed, legislative representative for the National Federation of Independent Business, which has about 30,000 members affected by the FMLA. Adds David Block, a partner in the New York City-based law firm of Jackson, Lewis, Schnitzler and Krupman: "Most employees are good employees. But it's those people who know how to work the system where it's going to be the biggest problem."

The abuse doesn't always look the same. It could be an employee documenting exaggerated—or untrue—medical complaints. It could be a new father taking time to spend with his child, but actually using that leave working at his in-home business. Employees may take advantage of the overlap between the FMLA and other laws to take more than their share of time off. The extent and intention of the misuse may vary, but it's still misuse.

Human resources plays a major part in protecting business from abuse—whatever form it takes. In a 1994 survey conducted by William M. Mercer and the University of California at Berkeley, more than half of 299 respondents reported that in their companies, human resources would be the primary administer of the FMLA.

One obvious role for HR to play in fending off FMLA abusers is that of police officer—and sometimes detective. When faced with an employee applying for leave, HR must first assess the situation. Does the certification seem sound, or does it need further investigation? "You hope that the instances of employees just getting a doctor to sign [medical certification] are small, but I don't think that's going to be the case, especially with what I call the more suspect," says Block. "Certain things are very easy to document and are very tangible. Other issues, such as stress and back injuries, you can't really tell."

Businesses shouldn't feel uncomfortable challenging suspect serious health conditions. It's their right. Yet it is a rather prickly maneuver. In this situation, several issues arise. First is the wording of the FMLA itself, which demands that an employee's reported condition only be questioned in good faith. So, in the earlier case of the about-to-be-terminated employee whose leave request was suspicious, a poor service record would not support a challenge. "If you're going to doubt a medical certification, it's got to be based upon some evidence," says Lynn Outwater, a managing partner in the Pittsburgh office of Jackson, Lewis. Outwater gives examples of situations that employers may—and probably should—challenge: an employee who, in the past, had a workers' comp certification proven false, or an employee who communicated with witnesses the untruth of a medical certification.

If an employer does decide to challenge the certification, it can demand two more medical opinions, but is required to pick up the tab for these. The employer may select the physician who'll provide the second opinion, but the physician must have no previous relationship with the company. The third opinion must be given by a health-care provider who is mutually chosen by the employee and company. It is a final and binding opinion.

Because eliciting three different medical opinions can take so long—and rack up quite a bill in the process—Block warns that in absence of a bona fide doubt involving a substantial period of leave, the company may be wise to just accept the first certificate. Those who are determined to game the system have the advantage. "The potential for abuse is that employees will be able to get notes that say what they want to say because in general, physicians will accommodate their clients," says Block. "From a malpractice point of view you can never be wrong by saying 'Stay home and rest.' So there's no incentive for the physician to say anything other than what the employee would like to have said."

However, a quick check into the physician's history with the employee may prove beneficial. For example, Outwater cites an experience in which an employee's physician turned out to be a relative. The worker received false certification and was going to use the time to take a vacation. An employer can give additional discouragement to this type of abuse by forcing employees to use vacation or personal time accrued as part of the FMLA leave. This will keep workers from trying to get two vacations for the "price" of one.

HR must get beneath the surface of the FMLA.
Not all misuse of the FMLA is intentional. Very often, employers themselves are indirectly responsible for the negative outcomes of its use. That's because those granting leave haven't been properly educated on the more intricate details of the Act.

HR needn't start from scratch. Most companies know the basics. But because the FMLA has been in effect only since August 1993, many employers get stumped when it comes to the trickier questions.

"The first thing that employers should be cognizant of is the rather low threshhold it takes to trigger eligibility for leave," says Block. Take the following example: An employer reports to her supervisor, explaining that her stomach hurts and she needs to go home. The supervisor assents and tells her to take a few days off. For two weeks, the employee remains out. A few weeks after returning, she becomes ill again. The worker contacts her supervisor with the news that the stomach ailment is serious and she'll need the full 12 weeks of FMLA leave. But the manager only grants 10 weeks, reasoning that the employee has already been out for two. It seems logical. It's also illegal. Because from the point that the worker informed the supervisor of her illness, the employer was considered on notice that the employee could be eligible for FMLA leave, and was obligated to give the employee her FMLA notice. So the firm loses two weeks that could have been chalked up to FMLA leave because the supervisor overlooked a policy detail.

The employer, however, is not completely stuck. Once a health condition is identified as being covered by the FMLA, leave may be applied retroactively—but only under specific conditions. These are:

  • The employee is still out on leave when the FMLA qualifications are discovered; and
  • The employee is out on paid leave.

All other situations would prevent an employer from applying FMLA leave retroactively.

Ellen McLaughlin, partner at Chicago-based Seyfarth, Shaw, Fairweather & Geraldson, offers another suggestion to keep a grip on FMLA leave. If an employee uses sick days sporadically, have the worker's physician fill out a medical certification to ascertain whether the illness is due to a serious medical condition. "Then you may get an indication earlier as to whether the time they're taking off is FMLA leave," says McLaughlin. This way, if it's a serious medical condition that is causing the spotty attendance, the company may count those lost days under FMLA leave—but it must make sure each absence is verified as being caused by the medical condition. "Just saying they're sick isn't going to get you anywhere," says McLaughlin.

Again, the company must balance protecting itself with making leave taking as easy as possible for those who really need it. But if a company must err, it should err on the side of caution. Says Block: "You're never wrong in jumping the gun. If an employee says that it's not an FMLA [condition], then you can count those leaves as unexcused absences. But you should start getting reflexive."

Unfortunately, proactive response seems to be the exception rather than the rule. To date, employers appear to have more of a knee-jerk reaction to the FMLA's mandates. They go through the obvious surface gestures but fail to follow through. For instance, 75% of respondents to the Mercer-Berkeley survey said that they had prepared a formal, written policy on family leave to comply with the FMLA. Yet only about 50% had prepared a form that employees can use to request leave. And less than half had prepared notices to give to employees who request leave. This type of oversight is the very thing that invites misunderstanding. And it's the type of misunderstanding that can wind up on the DOL's plate. "The folks over at the DOL are finding that employers are not complying," says Kathleen Rosenow, consultant, group and health-care practice with Washington, D.C.-based Wyatt Co. "It's not for not wanting to comply. They've tried to comply and something slips through the cracks."

And there's a lot that can slip through the cracks. "Administering this law has become a nightmare," says Block. "It's different than other laws. The discrimination laws, in Biblical proportions, say: 'Thou shalt not discriminate against someone because they are white or black; thou shalt not sexually harass.' This law is very different, it's a 'Thou shalt...'"

Yet employers don't have to allow the FMLA commandments to completely disable them in their quest to keep the workplace running smoothly. Many of the mandates give business the room to tinker with policies—and a few twists of wording can protect the employer, while still serving the employee.

For instance, in addition to policing the amount of time employees take off, HR can also control the period of time in which the leave is taken. This can be done by instituting a rolling year policy. The FMLA only demands that a 12-week leave period be granted within a 12-month period. This allows the possibility of leave stacking, in which employees take 12 weeks at the end of a year and then 12 weeks at the beginning of the next. There is nothing in the Act's wording to prevent this. However, there is nothing in the Act that says an employer must allow it. By instituting a rolling year policy, the employer ensures that leave requests will be granted only if the time has not been used in the 12 months previous to the request. Such preventive measures as this can give the employer a little perk in a legal environment that tends to favor the employee.

Know the overlaps between the FMLA and other acts.
One thing that must be done is to look at the FMLA in the big picture. The Act has many overlaps with other federal mandates, and a failure to address this can cause serious problems. "If you look at the FMLA in isolation, you can get in big trouble," says Outwater. "Anybody who's reading the FMLA and saying, 'Well, that's all I have to do' is making a serious mistake. If the employer has not carefully integrated its policies, that minority [of abusers] is going to be able to get away with significant amounts of time off."

One situation that allows widespread abuse occurs when an employee is out on workers' comp leave, and the injury—for instance, a serious back trauma—also is covered under FMLA. Unless HR ensures that the two leaves run concurrently, the employee may take workers' comp, return to the job and then decide to take another 12 weeks of FMLA leave. Mandating that the two leaves are spent simultaneously is one of the aforementioned policy tweaks that too many employers ignore.

In fact, a lot of unnecessary leave taking can be headed off—and not enough companies are taking advantage of the situation. Here's a common problem: A company has a clear-cut policy that if a worker is out for an entire year, be it short- or long-term disability, the employer will terminate the relationship. However, if the employer doesn't explicitly include FMLA in this policy, it may not terminate a worker who decides to take 12 weeks in addition to the provided year. To do so would be viewed as retaliatory, in that the employer is considered to have taken adverse employment action in response to an employee's use of FMLA leave.

The solution to this is simple: integrate your leave policies. Reword company documents. For example, if you want the total cap of permissible employee leave to be one year, revamp leave policy to be 40 weeks so that when the 12 weeks of FMLA leave is added, the total is one year. "What I suggest to employers," says Block, "is to discard the concepts of separate disability, maternity and workers' comp leave. Get everything under the same umbrella. If you don't do that, you're creating: (1) Confusion among your employees as to what leave they're under and (2) The possibility of what I call double dipping: [The employee] takes disability now and later will take FMLA."

Other acts must be considered in relation to the FMLA, even though they aren't areas that invite employer regulation. One such act is the ADA, which overlaps the FMLA in several areas. For instance, a problem could show up as soon as an employee requests time off. Here's what's happening: An employee with a serious health condition applies for leave, and receives the mandated 12 weeks. At the end of the 12 weeks, the employee asks for another five. If the employee has a condition that is covered under both the ADA and the FMLA, the employee is indeed entitled to the extra five weeks. The EEOC's current position is that FMLA leave is considered a right, so it does not qualify as reasonable accommodation under the ADA. There's nothing that can be done to prevent this, but it's something employers must know. "Sensitize management and supervisors to the interplay between the ADA and the FMLA, because sometimes they're the ones out there interpreting the policy," says Outwater.

Those not advised of the overlap between the FMLA and ADA can run afoul in other areas also. For instance, under the ADA, an employer is required to reasonably accommodate the worker by offering intermittent leave, a reduced schedule or a transfer to a less demanding position. However, under the FMLA, the employee is not required to accept the offer and may choose to sit out the full 12 weeks. Those implementing the policy must be aware that: (1) An employee who is covered by the ADA may very well be covered by the FMLA also; and (2) If this person does qualify for FMLA leave, the company can't compel the employee to return to work.

In addition, if an employee does choose intermittent leave, he or she is entitled to take this for any time period. For instance, if an employee must be gone from noon to 2 p.m. every day, the employer must allow this. However, the company does have the option to temporarily transfer an employee requesting intermittent or reduced work leave to an alternative position, with equivalent pay and benefits, which better accommodates the employee's recurring periods of leave.

Another careful balance is required when an employee announces the need for intermittent or reduced-time leave. Obviously, most employers want to know why. Under the FMLA, it's fine to ask the necessary questions. However under the ADA, companies may ask only certain questions. "This is one of the areas that's sort of a stickywicket with employers—just how far they can go in asking questions," says Rosenow. She says that employers can handle the situation one of two ways. Employers may decide to play it safe and stick to the ADA line, or go ahead and ask the questions, citing allowance by the FMLA if an ADA complaint occurs.

Spread the word: Training and communication can head off trouble.
Successfully coping with the ramifications of the FMLA is still not the same as successfully using it to your company's best advantage. Organizations that take proactive steps by training managers, informing employees and allowing appeals find that they can balance the employee-friendly spirit of the law with running a business.

To do this, HR must first ensure that management has been properly trained. Supervisors can't protect their companies unless they know what the law allows and prohibits. "This statute is effecting the way managers have to manage, the inquiries managers have to make and the actions managers have to do," says Block. "This requires HR to train their managers, because there's no way you can expect them to know this."

Unfortunately, corporate America by and large has been remiss in its commitment to educating its managers. Only 22% of respondents to the Mercer survey have trained supervisors on the FMLA, and what's even more alarming is that 22% said that they probably would not do any training. This is precisely where companies will run into problems. Says Outwater: "Employers are not providing enough training for their first-line supervisors. The employers who are having a problem are having a problem because they are not educating themselves, they are not educating their key people. I feel that's where the greatest vulnerability remains."

Mercer's Stanger, who co-authored the Mercer-Berkeley survey, advises that employers begin supervisor education immediately. She says HR should shape the program to fit its target audience. While some supervisors take to written material, others respond more positively to an ongoing education program. "I think different things would work at different employers," she says. "There's no one right approach that's going to work for everybody."

The most important issue to remember is that it's not supervisors' primary responsibility to inform themselves on the ins and outs of the FMLA—it's HR's job to inform them. That doesn't mean managers need to be able to rattle off all of the FMLA's provisions forward and backward. But they do need to be confident on the basics. As Seyfarth's McLaughlin says: "When the red flag goes up, they need to know it's a red flag."

Outwater says that many employers are losing out simply because the people granting leaves haven't been schooled well enough in the FMLA. "The [employee] doesn't always say the magic words: Family and Medical Leave Act. They don't use those terms. They just say, 'I need time off.' But [in doing this] they advise you of their illness," she says. And all employees are required to do is inform an employer of their illness. If the employer is unprepared, it has only itself to blame.

Block says that managers must be drilled to handle situations such as this. "Someone hurts themselves at work, most managers say, 'Jeez, this could be workers' comp, get the workers' comp form.' You've got to train them to think the same way about FMLA. I don't think a lot of managers out there have been trained in this," he says.

That doesn't mean that every time an employee gets the sniffles, a manager has to hover over with an FMLA notice. Block suggests that one practical way of preventing overuse of leave is to make it a policy to send out the forms as soon as a short-term disability is triggered. This makes a good compromise between giving employees room to breathe while maintaining control over leave practice.

"Employers must do more than cross their fingers in hopes the FMLA won't do any damage. They must consider the FMLA in their business strategy."

As HR embarks on this type of technical training, it must make the education as clear and interesting as possible. Greta Kotler, vice president of training for the American Society for Training & Development, says that the most important thing is to demonstrate what the FMLA means to supervisors in a practical way. "The real issue is to make it relevant to them and interesting to them," she says. Kotler suggests using case studies to give managers a glimpse of what the FMLA really looks like in action. Don't get stuck in textbook mode; instead offer examples, hypothetical or real life, of what can and can't be done. Kotler worries that companies that don't do this may not be offering the most effective training. "I think that—and this is what's probably happening—if you give [information] to people in legal language, they just don't understand it and aren't interested. Make it real to them."

Wyatt's Rosenow says that unless supervisors are well trained, the ignorance can have a domino effect. Because employees look to their direct supervisors for guidance, a misunderstanding on the part of the supervisor can lead to a misunderstanding by a worker. And this, again, opens the door to unintentional misuse. "[Educating] supervisors is very very important. They are the ones out there on the front," says Rosenow. "They are the ones getting and retaining and passing on information. If they pass it on erroneously, then you have a gap in the system. But also communication to employees is extremely important. If we miscommunicate to an employee, there's another gap."

Communicating with employees is definitely an important step in discouraging misuse. It also plays a large role in spreading the good will that enables an employer to put its foot down while keeping morale up. For instance, an employee who erroneously but vehemently believes that his or her FMLA rights are being violated can do a lot of damage before being convinced otherwise.

A clear communication effort can ensure that employees know that they're receiving fair—and legal—treatment. New York City-based NYNEX, for instance, took pains in communicating to its work force when it tweaked its already generous leave program to comply to minor FMLA rules. It used several communications vehicles, but most importantly was the company's commitment to ensuring that employees understood the Act's implications on a personal level.

To address employees' individual issues, work/family professionals in regional offices are designated to answer inquiries on an individual basis from employees. "We find that that's a lot more effective than having one central number where people call in, because these individuals counsel both employees as well as supervisors, and they go through specialized training just to up-date from a benefits standpoint," says Jacquelyn Gates, director of corporate culture initiatives. "We have a tremendous team of resource people whose major accountability is responding to individual questions from our employees."

NYNEX also works closely with its union, the Communications Workers of America, to spread the word. Says Donna Dolan, director of work and family issues for District One of the union: "We will do something in terms of written communication, and offer speakers at a local union meeting or a workplace lunchtime meeting."

Alana Kennedy, managing director of human resources planning, strategy and culture change, says that the company has no problem with the FMLA. This may be due to the fact that the organization, in almost every area, goes far beyond mere compliance with the Family and Medical Leave Act. For instance, it allows employees to take up to a year off, during which time the employee continues to accrue credited service. Because it maintains such a commitment to employees, is the chance of abuse limited? "Absolutely!" answers Kennedy.

Taking an active role in FMLA leave can give a company some control.
However, many businesses simply don't have the resources to do more than comply with the FMLA. Just instituting compliance can be a serious burden for some. These employers must do more than just cross their fingers in hopes that the FMLA won't do any damage. They must ensure that the FMLA is considered in their business strategy.

As part of a company's further integration of the FMLA into the organization, Stanger suggests providing an appeals procedure. Not only does this allow the company to address a worker's confusion or anger at being denied a leave, but it also gives human resources a chance to correct any wrongs it may have overlooked. "An appeals procedure can resolve disputes before they get to the let's call in the lawyers level. They can provide a mechanism for a third party who hasn't been involved in the dispute to look at it objectively," says Stanger.

Institution of an appeals procedure is another low-cost, high-gain area that is part of a smart, proactive business plan. However, employers haven't taken advantage of it much yet. Only 27% of companies responding to the Mercer survey have done so, and 53% said they probably never would.

Other initiatives are less policy oriented but still just as important. For instance, although the FMLA allows employees who need to be out the right to leave, it does not give employees the right to drop everything on their last workday and head out. For instance, employees who know that they will be out from May to August should put in the necessary time during April to create a plan for how their work should be handled. Job duties and training remaining staff to handle the extra load should be addressed.

At this point, it may also be wise to suggest the idea of intermittent leave to the employee. For example, at some companies, workers who leave for maternity reasons enjoy the idea of coming back to work slowly rather than staying off the entire four moths and jumping back into full-time hours. These women may take off completely the first two months, return for a few hours a week the third month, and come back for half days in the fourth month. Such resolutions benefit both the company and the employee.

Also encourage workers on leave to check in from time to time. The continued communication will allow co-workers to resolve any questions that may have arisen in the employee's absence and will also keep the employee feeling part of the work community.

All this may not prevent abuse of the Act, but it may at least, lessen the detrimental effect of losing an employee for four months.

Successful handling of the Family and Medical Leave Act really comes down to what human resources is all about: Learning, communicating, training and keeping a pulse on the organization. It requires careful treading, yes, but it is possible to ensure that the FMLA assists employees without damaging business. Now quick: What do you say to that sales rep who wants mornings off?

Note: Issues discussed in this article are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

Personnel Journal, September 1994, Vol.73, No. 9, pp. 36-45.

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