One morning your employee calls in sick, claiming his gout has flared up. Later that day, you notice a photo online showing the same worker who’s using intermittent medical leave sliding into home base on a ball field. How can you confirm your employee is misusing FMLA leave?
As pointed out in an Employee Benefit News article, this sort of situation can be tricky and, if not handled correctly, it can lead to an expensive lawsuit. However, if an employer has good reason to believe an employee’s absence from work isn’t valid, there is a process in place that allows for an investigation.
“I think [a social media photo] casts doubt on the reason for their absence,” said Byron Bass, Senior VP of Workforce Absence at Sedgwick – a business solution company – during a recent webinar hosted by the Disability Management and Employer Coalition. “It merits a second look, along with some potential code of conduct talks with HR.”
When a questionable situation arises, employers can ask for the worker’s approved medical condition to be recertified, Bass said. This involves having the employee resubmit their original FMLA application. Afterward, employers can send a list of absences to the employee’s healthcare provider to authenticate the dates as valid medical absences. Typically, employers can only request recertification after a 30-day period, unless there’s reason to believe the employee is taking advantage of the system.
“If, for example, you notice two employees — who happen to be dating — are taking off the same days for their different medical conditions, that’s a valid reason for asking for recertification,” Bass said. “Patterns of absence are a common reason to look into it.”
Instead of requesting recertification, some employers make the mistake of contacting the employee’s physician directly — a process called clarification. Employers are only allowed to use clarification during the initial FMLA application, and only after obtaining the employee’s permission. Clarification is used to answer employer questions about the amount of rest an employee’s condition merits.
Employers might not trust the opinion of their employee’s doctor, but they can’t ask for a second opinion until it’s time for the employee to re-submit their annual certification, Bass says. When that time comes, employers can appoint a physician to reexamine the employee at the company’s expense. If the employee objects to the second doctor’s report, a third opinion can be sought.
“With third opinions, both the employer and the employee have to agree on the provider because their decision is final,” Bass said. “Employers are also required to cover this expense.”
Although employers are within their right to file recertification, Bass says it should be done sparingly and in situations where evidence suggests misuse. An employee using slightly more time for recovery isn’t automatically abusing the policy, he said.
“FMLA does not permit healthcare providers to provide an exact schedule of leave, just an estimate of absences necessary for the employee’s treatment and recovery,” Bass said. “Treatments are more predictable, but it’s still only an estimate. If someone takes a little more time than estimated, it doesn’t mean you need to ask for recertification; in fact, the Department of Labor discourages that.”