In our July 12 HR Boot Camp, I got a question about the FMLA and whether leave can be taken intermittently (it can). The follow up question led me to believe that the employee taking the leave was perhaps malingering, and I wanted to explore that issue more in this post. This is probably a good time to remind you that while I am an HR professional, I’m not a lawyer, so your best bet with any challenging legal issue is to consult with your organization’s legal counsel (see my legal disclaimer on my site footer).
The Family and Medical Leave Act of 1993 allows an employee to take 12 weeks of unpaid leave for a personal serious medical condition, a family member’s serious medical condition, or the birth/adoption/foster placement of a new child. Used properly, the FMLA provides workers a way to take care of themselves or others and return to work as productive members of the organization. When abused, though, FMLA leave can cause problems in productivity, coworker relationships, and trust.
Malingering occurs when a person exaggerates or fakes illness in order to miss work. In the case of the question from HR Boot Camp, intermittent leave was being taken in a way that made the HR department suspect that the needed days off weren’t always truly needed. In a situation as such as this, needing intermittent days immediately before or after a holiday or on Fridays or Mondays may indicate malingering. Or, always using every day of the 12 weeks within a year (no more, no less) may point to malingering.
So what is HR to do? Federal law allows for intermittent leave, and HR can’t question an employee about their medical condition. Thankfully, the law allows for employers to verify that employees are using FMLA appropriately and not abusing the system. Below are a few things that HR can do.
The first way to deal with potential malingering is to do it proactively, by using proper certification methods and making sure that all required employee medical information is provided. The Department of Labor provides a certification form here, and the employer can require that it’s fully completed before granting FMLA leave. While most organizations require annual certification, you can ask for it as often as monthly, which is a good way to remind employees that intermittent leave is not a break, but time off for a purpose.
Second, HR should have a discussion with the employee regarding the expectations of their FMLA leave, particularly in regards to intermittent leave. HR should also clarify performance expectations during intermittent leave, and depending on the situation, you may or may not change expectations of what work the employee is to accomplish. HR can also reduce pay for the hours missed (if the FMLA is unpaid and not paid by sick or vacation leave). Although the Fair Labor Standards Act prohibits docking exempt workers’ pay for hours missed, there is an exception for FMLA that allows reducing pay for time missed.
Third, if the employer has a reasonable suspicion that the medical certification isn’t accurate (i.e, the employee is not truly suffering from a serious medical condition on specific days for which leave is taken), the employer can require and pay for a second opinion from the physician of his/her choice, as long as it’s not the same doctor used by the employer most of the time. If that second opinion conflicts with the first, a third opinion may be sought. Note that the second opinion isn’t an option when employees take leave to bond with a new baby.
Finally, if it’s an extreme case, you might engage in surveillance to see what the employee taking leave is actually doing during intermittent leave. This article details a court case in which the employer terminated an employee after building a case regarding FMLA malingering and was supported because of the employer’s honest belief in abuse of the law. You’ll probably have better luck with the first three approaches, but surveillance to gain evidence is an option.
Do you have questions about the FMLA and what HR can do to manage it? Maybe this blog post has you wondering if you’re following federal laws as you should. If you’ve got questions, we’ve got answers! Contact us about our HR consulting, or sign up for the next HR Boot Camp, scheduled for August 27!
-MSD
