Suffering from FMLA Abuse?  Here's a Radical Idea…

Document created by 1002028 on Nov 18, 2015
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doug test account pic.jpgWhy It Matters: Your Recruiting Process May Be a Leading Cause of your FMLA problems...


The Family and Medical Leave Act was enacted by Congress almost 25 years ago for laudable reasons: to "balance the demands of the workplace with the needs of families," and provide job-protected leave for qualified medical and family reasons.  It's hard to argue the law's intent.  However, what we frequently hear from members is the other side of the story, that FMLA abuse is creating a drain.  We recently reported on a study that found that more than 10% of the U.S. workforce is on FMLA leave at any given point in time.  Many employers feel powerless when it comes to controlling FMLA abuse.


Typical Advice.  You'll find no shortage of advice out there on how to control FMLA abuse.  Here's a typical list of control measures:


  1. Calculate FMLA Leave Using A “Rolling” 12 Month Period.
  2. Require That Employees Use All Paid Leave Prior to Taking Unpaid FMLA.
  3. Require Medical Certifications.
  4. Require Employees Provide Thirty Days Notice for Foreseeable FMLA.
  5. Demand That Employees Schedule Medical Treatments Around Work Schedules.
  6. Establish And Enforce Reasonable Attendance And Call-In Rules For All Leave.
  7. Assign Employees Taking Intermittent Leave To Alternative Positions That Cause Less Disruption.
  8. Require “Fitness For Duty” Certifications For Employees Returning To Work.
  9. Require Second and Third Opinions.
  10. Establish a Policy Prohibiting Employees From Working Second Jobs While On Leave.
  11. Utilize private investigators when you suspect fraud is occurring.


Now for a quick test.  What do all of these measures have in common?  If you said that they all are post hire measures, you're correct!  That's right, almost 100% of the advice you're going to find about curbing FMLA abuse tells you what you can do after you've hired someone who then begins abusing FMLA.  Now to be clear, there is nothing wrong with these measures and this list represents a great checklist to follow.  But again, you already hired the problem.


Now to my radical idea.  If there was a way to legally avoid hiring people who were prone to abusing FMLA leave, would you implement that course of action?  Or would you be too concerned with potential liability?  Just think about how many problems you encounter in your workplace that are really hiring problems.  We hire employees who don't fit our culture and then try to "fix" them.  We hire people that can't meet our productivity requirements.  We hire managers who have no experience managing people and are surprised when they fail.  And on and on.  Well the same goes for attendance problems.


Take a look at your interview and assessment process for job candidates.  Are you doing anything in those processes to identify people who are prone to attendance abuse?  Obviously you wouldn't want to directly ask someone about their prior use of FMLA leave.  However, during an interview, an employer can ask the following:


  • When we call your previous employer or references, what are they likely to tell us in regards to your dependability/attendance?
  • How many Mondays or Fridays were you absent last year on leave other than vacation?
  • Our attendance requirements are “X” – Will you be able to meet them?
  • How many days were you absent from work last year other than vacation?
  • Did you violate any previous employer’s attendance requirements?
  • Have you ever been disciplined or counseled at any previous job in the last x years for violating attendance requirements?


Also there are several assessment tools out there that can identify someone's views towards attendance.  At CAI we offer the Profile Step 1 Survey that in part measures someones feelings towards being late, absent, etc.


OK so maybe my idea doesn't sound radical, but I bet many of you will find that you really aren't typically asking these kind of questions.  And to be clear asking the questions won't guarantee you'll rid your workforce of FMLA abuse, however if you can prevent just one more abuser from being hired it's worth it.  FMLA abuse tends to breed more abuse.


Think about it.  And as always, call our Advice & Resolution team for help in controlling FMLA abuse at your workplace. 


Further reading:


More than 10 percent of U.S. workforce on FMLA leave at any given time

When Can you Deny FMLA Leave or Restoration Following Leave?

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