Dealing With Abuse and Special Problems Under the FMLA

The Family Medical Leave Act (FMLA), is heavily abused and burdensome to administer.  Put together, this combination can mean a major headache for employers.  There are numerous questions that remain unanswered when it comes to what to do when an employer suspects an employee is abusing his FMLA rights.  Many employers have been subject to painful litigation as a result of the FMLA, especially as a result of their well-intentioned but improper attempt to regulate these frequent abuses.  There’s no guaranteed way to avoid FMLA errors but sample scenarios help illustrate some of the most common traps for employers.

Requesting Recertification During Leave

If the employer has good, objective evidence that abuse is taking place, the employer may require that the employee be recertified before the end of leave.  If an employee requests an extension of leave, the circumstances since the last certification have changed significantly, or the employer has received information that casts doubt on the continuing validity of the certification.

Possible Options

The Department of Labor (DOL), issued an administrative ruling saying that “the FMLA does not prohibit an employer from including a record of an employee’s absences along with the medical certification form for the health-care provider’s consideration in determining the employee’s likely period of future absences.”  The employer may ask the provider whether the employee’s absences are consistent with the stated serious medical condition. 

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