The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provides for overlapping, as well as separate leaves of absences. The administration of these leaves can be confusing and time-consuming.  Employees are becoming more sophisticated in abusing the system and many companies feel it is a problem they are helpless to stop.

To minimize disruption in the workplace, employers must be proactive in preventing abuse. Don’t be afraid to hold employees accountable for their actions.  FMLA/CFRA rules and regulations provide employers with guidelines to help prevent abuse.  These tactics will help in avoiding employee abuse:

1. Review your FMLA/CFRA policies and procedures to ensure they are up to date. Auditing your policies to ensure they are up to date ensures consistency and prevents errors on your end.

2. Use written leave request forms. Even if an employee gives you verbal notice, you can ask that they submit their leave request in writing. When employees realize there is a paper trail, they are less likely to request leave they do not need.

3. Request the medical certifications be returned within 15 days. A medical certification form is your primary tool against abuse, so require employees certify their absence and seek re-certification when circumstances change. Employers who do this in writing, explaining the penalties for not doing so, may take action, including delaying the leave, toward employees who fail to follow the rules. If the certification is incomplete or insufficient, request clarification. ^[1]

4. Calculate leave on a “rolling” 12 month period. This avoids the potential abuse of employees doubling their leave if leave is measured on a “calendar year” basis. ^[2]

5. Require employees use their paid leave prior to taking unpaid FMLA/CFRA leave. Generally, FMLA/CFRA leave is unpaid. Employees are less likely to abuse FMLA/CFRA leave if they have to first use their vacation to do so.^[3]

6. Establish and enforce call-in procedures for all leaves. Employers can deny FMLA/CFRA leave if employees fail to follow company call-in policy. The key to avoiding abuse is consistent enforcement of leave policies designed to prevent it.

7. Require employees provide 30 days notice for foreseeable FMLA leave. Requiring advance notice allows the employer to plan for the absence, which increases productivity and reduces abuse. ^[4]

8. Request employees schedule medical treatments around business hours. The regulations allow employers to ask employees to make reasonable efforts to schedule their medical treatment either before work or in the late afternoon to minimize disruption to the employer’s operations.^[5]

9. Require employees to submit a re-certification every 30 days.^[6] In some instances, an employer can require re-certification more frequently than every 30 days. ^[7] For instance, if the employee requests an extension; if circumstances change; or if an employer receives information that casts doubt on the employee’s stated reason for the absence.

10. Check in periodically. Keep open the lines of communication. Checking in with the employee periodically to see how they are doing is legal – just don’t ask them to do any work while they are on leave.

_{[1] 29 CFR §825.305(b).}

_{[2] 29 CFR §825.200}

_{[3] 29 CFR §825.207(b)}

_{[4] 29 CFR 825.302(a).}

_{[5] 29 CFR 825.302(e).}

_{[6] 29 CFR 825.308(a).}

_{[7] 29 CFR 825.308(c)(1), (2), and (3).}