Family and Medical Leave Act (FMLA) absences are on the rise, and some sectors – call centers, hotels, government entities, manufacturers and health care organizations – far surpass others in terms of absenteeism rates, according to a new report by FMLASource®, Inc., a ComPsych® company. The report is available at http://www.compsych.com.  From 2008 to 2012, FMLASource reports the
following trends:

• Average length of continuous leave for health care employees jumped 27 percent to 28 days.
• Total FMLA time off for manufacturing companies increased by 62 percent to 26.9 days.
• Total FMLA time off for call center companies increased by 30 percent to 27.2 days.

  Other key findings of the report:
   

• Hospitality providers had the most overall FMLA absences, with 49 percent of employees with an open FMLA leave at any given time.
• Health care employers had the second highest rate of FMLA absences, with 39 percent of their workforce having an open FMLA leave at any given time.
• By contrast, just 7 percent of professional services employees have an open FMLA leave at any given time.
• Hospitality providers had the highest rate of intermittent leave at 58 percent, with average leave per employee equaling 17 days total.
• Manufacturing employers had the highest rate of continuous FMLA leave at 76 percent, with average leave per employee equaling 31.4 days.

The increased use of FMLA leave means that employers have an increased risk of claims of discrimination or retaliation based on the use of FMLA leave.  FMLA leave administrators and management can reduce employers’ risk by ensuring effective administration of FMLA leave. 

The FMLA statute itself, the Department of Labor (“DOL”) regulations and case law reveal various practices employers can use to control abuse of FMLA leave. To be sure, none of them are a silver bullet, and not all will be appropriate for every employer given differences of workplace policies, practices and particular problems encountered.  These tools, however, offer some means by which employers can improve FMLA controls and reduce abuse.  Employers should review their FMLA policies and procedures in light of the statute and regulations as well any applicable state or local law, and consider revisions, including the following.

Require Compliance with Employer Policy for Leave Requests.  An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer’s policy to contact a specific individual or phone number. Unusual circumstances would include situations such as when an employee is unable tocomply with the employer’s policy because, on the day the employee needs to provide notice of his or her need for FMLA leave, there is no one to answer the call-in number and the voice mail box is full. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

Get Consent to Contact the Doctor for Clarification of Medical Certification. The employer may contact the health care provider for purposes of clarification and authentication of a complete and sufficient medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies. To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances, however, may the employee's direct supervisor contact the employee's health care provider.  

“Authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested.  “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form. The requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule, which governs the privacy of individually-identifiable health information created or held by HIPAA-covered entities, must be satisfied when individually-identifiable health information of an employee is shared with an employer by a HIPAA-covered health care provider. 

If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

Consider a Prohibition on Material Misrepresentations in Connection with the Use of Leave. Courts have rejected employees’ FMLA claims in cases in which the employee lied to or misled the employer or falsified leave documentation.  In addition, the DOL regulations make clear that the statutory provisions for job restoration and maintenance of health benefits do not protect the employee who fraudulently obtains FMLA leave.

Prohibit Other Employment During Leave. The regulations provide that if the employer has a uniformly-applied policy governing outside or supplemental employment, the policy may continue to apply to an employee while on FMLA leave. But the regulations also provide that an employer that does not have such a policy may not deny FMLA benefits on this basis unless the FMLA leave was fraudulently obtained. The DOL has applied the regulation in an opinion letter in the context of an employer policy prohibiting outside employment while an employee is on a paid or unpaid leave and determined that an employee on FMLA leave would be subject to such a policy. 

Provide for Recertification of Health Conditions.  The regulations allow an employer to require recertification in cases of certified serious health conditions, with specific limitations.  If the original medical certification indicates that a minimum duration of the condition is more than thirty days, the employer may request recertification after the expiration of the stated duration.  For example, if the medical certification states that an employee will be unable to work, whether continuously or on an intermittent basis, for 40 days, the employer must wait 40 days before requesting a recertification. In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee.  Accordingly, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition), the employer would be permitted to request recertification every six months in connection with an absence.

Require Employees to Provide Information Regarding Changes of Circumstances.  The DOL regulations permit an employer to require recertification before the expiration of the minimum period specified in the certification as necessary for the leave if the circumstances described by the previous certification have changed significantly.  If, for example, the duration or nature of the illness changes or complications arise, the employer may request recertification. An improvement in the employee’s condition also may mean that the employee is no longer incapacitated and therefore not qualified for continued FMLA leave.

Reinitiate the Medical Certification Process in the New Leave Year. FMLA leave cannot be taken forever on the basis of one leave request. Where the employee’s need for leave due to the employee’s own serious health condition, or the serious health condition of the employee’s covered family member, lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year. Such new medical certifications are subject to the regulations relating to authentication and clarification of certifications, including second and third opinions.

Attach Job Descriptions and Other Pertinent Information to Certification Form.  In the absence of information about any employee’s job from the employer, a health care provider will rely on the employee’s account of the requirements of the job, which often is incomplete.  In the context of an employee’s pattern of Monday/Friday absences, the DOL has stated in an opinion letter that the FMLA does not prohibit the employer from including a record of an employee’s absences along with the medical certification form for the health care provider’s consideration.  The DOL opined that, as part of the certification process, the employer may ask the health care provider whether the pattern of absences is consistent with the employee’s condition. The regulations also expressly allow the employer to provide a statement of the essential functions of the employee’s position for the physician to consider in determining whether the employee is unable to perform any of the functions.  

The DOL regulations provide that, as a condition of restoring an employee whose FMLA leave was occasioned by the employee’s own serious health condition, an employer may have an uniformly-applied policy or practice that requires all similarly-situated employees to obtain and present certification from the employee’s healthcare providers that the employee is able to return to work.  Additionally, an employer may require that the fitness-for-duty certification specifically address the employee’s ability to perform the essential functions of the employee’s job. In order to require such a certification, an employer must provide an employee with a list of the essential functions of the employee’s job no later than with the designation notice required under the regulations, and must indicate in the designation notice that the certification must address the employee’s ability to perform those essential functions. 

Require Employees to Report Any Changes in Contact Information. The circumstances of an employee on leave sometimes take the employee to locations other than a regular home address, and as a result, the employer may be uncertain whether its communications are being received by the employee. By requiring the employee to report changes in contact information, the employer will be better positioned to counter employee claims that the employer provided notices to the employee at incorrect locations. Courts have held that an employer may safely send notices under the FMLA using the method prescribed by collective bargaining agreements or some other source of rules. 

This article was previously published in the Employment Law Daily.