ALP: How can employers curb the abuse of intermittent FMLA leave?

June 2006

Employers frequently have to deal with Family and Medical Leave Act (“FMLA”) questions.  What does an employer do when an employee is suspected of abusing FMLA leave by taking leave consistently on Fridays and Monday, with no apparent justification for the Friday and Monday pattern?  There are several options:

First, the employer should have in place a comprehensive FMLA policy.  Everything the employer does should be consistent with this policy.

Second, obtain a leave certification. This is the first tool to use to ensure that leave is appropriate and necessary.

Third, if the employer suspects a pattern of abuse, it can require the employee to recertify the condition after 30 days.  The recertification is at the employee’s expense, so it discourages employees from failing frequent false claims.  The FMLA permits recertifications every thirty days for absences related to chronic health conditions, or when the employer receives information that casts doubt on the employee’s stated reason for the leave.  A Friday/Monday abuse pattern can in and of itself constitute information that casts doubt on the employee’s stated reason for the absence.

Fourth, when seeking certification or recertification, the employer should, through a company retained health care provider and with the employee's permission, inform the employee's health care provider that the employee has a pattern of Friday/Monday absences.  The employer can even provide attendance records showing the pattern of absences.  It can also request that the health care provider specify whether the frequency and duration of the incapacity from a chronic condition is limited to Mondays and Fridays."

Using these tools will help assure that employees who truly need intermittent FMLA leave will get it, and those who seek to abuse it will be discouraged from doing so.