Adolay: Legal tools for combatting employee leave abuse

August 23, 2017
Adolay Adolay

By Amy J. Adolay

There are several ways employees can take medical leave for health conditions, including based on employers’ policies, the Family and Medical Leave Act, and the Americans with Disabilities Act. Employers are most familiar with employees taking medical leave under the FMLA. If an employer has 50 or more employees and is otherwise covered by the FMLA, eligible employees can take up to 12 weeks of medical leave per 12-month period due to their own serious health condition (and up to 26 weeks for certain military-related reasons). Some employers are less familiar with the obligation they may have to provide medical leave as a reasonable accommodation under the ADA.

The U.S. Equal Employment Opportunity Commission and federal courts have consistently said that when an employee has a disability, one form of reasonable accommodation that must be considered is medical leave. Analysis of whether an employee is eligible for leave under the ADA can be triggered when the employee is ineligible for FMLA, such as when the employee has not worked sufficient hours in the past year, or when the employee has used all available FMLA leave.

Many employers are seeing spikes in the number of employees requesting and taking medical leave. While the availability of medical leave plays an important role in keeping workers healthy and providing job protection, employers do not have to tolerate leave abuse. The costs of medical leave abuse include not only the money employers pay in overtime or temporary workers to cover shifts and meet staffing needs, but also the costs associated with lost productivity, lower sales, failure to properly service customers, and perhaps most critically, dips in employee morale. Co-workers tend to get upset when they learn that an employee is attending a concert, taking a trip to Hawaii, or simply taking numerous Fridays and/or holidays off for “medical reasons.” While an employee might legitimately be able to enjoy other personal pursuits even if he or she is unable to perform job duties, often this conduct is a signal of leave abuse that should prompt further investigation.

Employers have many tools to combat and curb medical leave abuse. One of the most effective is written policies and procedures. Employers’ policies can require that employees follow call-in procedures when taking medical leave. Further, policies can require that employees use all of their paid vacation, sick or other forms of paid time off while taking medical leave. Employers should have a process in place by which they track whether each absence is for the reason indicated in the employee’s FMLA certification or other documentation provided by the employee’s physician for other forms of medical leave. Employers can also implement policies prohibiting employees from working for any other employer while taking medical leave, as long as the policy applies to all forms of medical leave to avoid interference or discrimination claims.

The FMLA itself also provides employers with several useful methods for preventing leave abuse. First, employers should require a health care provider completes the FMLA certification form to support the request for leave. When an employee returns the certification, employers need to ensure that the form is complete (all of the applicable entries have been completed) and sufficient (the information is not vague, ambiguous or non-responsive). If the certification is incomplete or insufficient, the employee has seven days to cure any deficiencies, absent good reason for needing additional time. In addition, employers (other than the employee’s supervisor) can contact the employee’s health care provider for purposes of authentication and clarification. Authentication means verification that the information and signature on the certification were actually completed by the health care provider. Clarification means that the employer cannot read the handwriting or is unclear about the meaning of the information provided.

Employers also can ask for second opinions if they doubt the validity of the certification. Such doubts might arise if the health care provider who completed the certification does not have a background in the medical field related to the employee’s reason for leave; for example, if a cardiologist is opining about a mental health issue. Certifications can be requested on an annual basis if an employee’s need for leave for his or her own serious health condition lasts beyond a single leave year.

Another extremely valuable tool under the FMLA is recertification. As a general rule, an employer can request recertification every 30 days with respect to an employee’s request for leave due to a serious health condition. However, if the certification states that the condition will last more than 30 days, the employer must wait the duration noted before requesting recertification. Regardless of the duration of the condition, however, the employer can request recertification every six months.

Despite the foregoing, an employer can request recertification less than 30 days if the employee requests an extension of leave, the circumstances described in the certification have changed significantly (such as if the employee is taking longer periods of leave or more frequent leave than set forth in the certification), or the employer has obtained information casting doubt on the employee’s absence or the validity of the certification (such as if the employer learns the employee is playing golf during leave taken to recover from shoulder surgery). Employers also should communicate with employees about scheduling doctor’s appointments outside of working hours, when possible, and otherwise scheduling leave when it will be least disruptive to the employer’s operations. In addition, when an employee is taking intermittent leave, the employer can temporarily transfer the employee to a position with equivalent pay and benefits that will better accommodate the intermittent leave.

Similar tools are available to employers whose employees take ADA leave. Employers should develop a medical certification form for employees who request ADA leave. Employers are entitled to information to establish that the individual has a disability and that the employee needs an accommodation due to the disability. With respect to the disability, the employer can get information as to the diagnosis and prognosis; the employer must be able to understand how much time the employee needs to be off from work so it can evaluate whether it can reasonably accommodate the request for leave.

While medical leave is an important benefit and, in some cases, a legal right for employees, employers can take numerous steps to try to combat leave abuse, including through robust written policies and procedures and the many tools available under the FMLA and ADA.•

• Amy J. Adolay is a partner at Krieg DeVault LLP who focuses her practice on employment litigation and counseling. The opinions expressed are those of the author.