Intermittent leave is one of the most challenging tasks for employers to manage. We probably hear more griping about FMLA use than any other topic (although the Massachusetts Sick Leave law is giving intermittent FMLA a run for its money). Even the MBTA is blaming its litany of problems on excessive FMLA use.
We get why it’s tough for employers. The leave is often unforeseeable, giving supervisors and managers very little time to find replacement coverage. Department morale can also take a hit, particularly when an employee’s FMLA use strategically falls on Mondays/Fridays or before or a holiday. To make things worse, employers cannot ask for medical documentation each time an employee takes an intermittent “FMLA day.” Should employers just waive the white flag and declare FMLA the winner? No, they shouldn’t. Employers need to know how and when to fight back during the initial medical certification stage. Recertification requests are another arrow in the quiver when the use of leave is excessive or the timing is suspicious.
First and foremost, employers need to scrutinize the initial medical certification to make sure it is “complete and sufficient.” You are entitled to know how long the need for leave is expected to last, and how often the employee is going to need it. Too often I see approved medical certifications with responses like “unknown,” “indeterminate” or “maybe” in the section certifying the frequency and duration of leave section. Absent unusual circumstances, that’s not good enough. Similarly, medical certifications are often vague and ambiguous when explaining the medical facts underlying the need for leave. Some sections are even left completely blank by the certifying health care provider. Employers should push back in these circumstances and require the employee to provide a certification that is “complete and sufficient.” Tell employees what’s missing, give them time to fix it (usually seven days), and if they fail to provide an adequate certification you may deny the leave.
What if the certification is sufficient, but you still think it’s completely bogus? There is a process for seeking second and even third opinions. Mind you, this takes time and can get expensive. Employees are entitled to FMLA provisionally until you receive the third opinion, and you only get to that third opinion if the second conflicts with the first. Still, employers should remember they can challenge the original certification through this process. Even if unsuccessful, challenging questionable certifications can send a strong message when department-wide FMLA use is getting unmanageable.
The most effective “push back” tool, from my perspective, is the regulation permitting recertification requests when the employee’s use of leave deviates significantly from the frequency or duration originally certified. For example, suppose your employee is certified for 2-4 absences every 3 months. During the first 2 months, the employee used 8 FMLA days. Can you do anything about it? Yes, you can probably seek a recertification of the need for leave because the employee used a lot more FMLA than provided for in the medical certification. Let’s change the hypo a bit and assume the employee only uses 4 absences in the first 3 months, but they are sporadic, generally falling in the middle of the week. During the next 3 (summer) months, all of the absences conveniently fall on a Monday or a Friday. In that case, the employer might seek recertification because the absence pattern changed significantly. Also, remember that in any case you can deny leave when you have sufficient facts showing the employee engaged in FMLA fraud (i.e., using the leave for non-FMLA reasons). Sightings or reports of the employee in inappropriate places, or even ill-advised social media postings, can lead to lawful terminations for FMLA fraud.
Bottom line: All hope is not lost in FMLA land. Learn to fight back against employees who provide scant documentation or appear to be abusing their need for leave.