Preventing FMLA/OFLA Abuse – What Can You Do?

by Bethany Wright on August 27, 2018

in Family Leave

Medical Consultation

Today, there are so many laws protecting employees and their jobs that a lot of employers feel they have no means to address attendance issues without risking a claim. Not only do we have the federal Family Medical Leave Act (FMLA), but here in Oregon we have the Oregon Family Leave Act (OFLA).

What employers may not always realize is that there are tools to help prevent employees from abusing these laws.

First, establish a clear leave approval process. Formalize a request process for protected leave and train supervisory and management staff to recognize eligible reasons for leave when they come up. Remember, employees don’t have to use the words “Family Leave” or “Protected Leave” to assert their need for protected leave. They need only give you “sufficient information” to make you aware of the need for leave.

Next, establish the employee’s eligibility for leave each time they request it. Of course, this assumes your organization is a covered employer.

  • For FMLA the employee must have 12 months of employment in the last 7 years (does not have to be consecutive), as well as having worked at least 1250 hours in the last 12 months. They also have to report to a worksite that has 50 or more employees within a 75 mile radius.
  • For OFLA, generally, it is 180 days of employment, with an average of 25 hours per week, with some exceptions.

Once you’ve determined if the employee is eligible, the next step is to validate that the reason for leave is eligible under FMLA and/or OFLA.

Eligible employees may take FMLA/OFLA protected leave only for qualifying reasons:

  • for birth, adoption or placement of a foster child;
  • for an employee’s serious health condition;
  • for the serious health condition of an employee’s family member (covered family members may differ between FMLA/OFLA);
  • for a qualifying exigency (FMLA only);
  • Military Caregiver for Current Service Member (FMLA only);
  • Military Family Leave (OFLA only);
  • for sick child requiring home care (OFLA only);
  • for bereavement leave for the death of a covered family member (OFLA only).

Once you’ve determined the request is for a covered reason, request a medical certification if appropriate. Medical certification should be required for any employee requesting leave for their own serious health condition, or that of a covered family member. While the law does not require medical certification to designate protections under the law, doing so can help prevent abuse of FMLA/OFLA as the employee will be required to get a doctor to sign and approve the need for leave.

Certification should be reviewed thoroughly and if there is not enough information to determine if it is a covered issue, request that the employee provide any missing information within 7 days of the request for more details. In addition, employers may request a 2nd opinion if they feel there is reason to doubt the initial certification. Remember, employers must pay for the second opinion if it is required.

Once leave has been approved, request recertification when allowed. The law allows employers to recertify every 30 days, unless the original approved time frame is longer than 30 days. In that case, recertification is only allowed at the end of the approved time frame if it is less than 6 months. Employers can recertify at 6 months regardless of the time frame for the approved condition.

Requiring employees on approved leave to comply with any established call-in procedures can also help curb abuse. Require employees out on a continuous leave to provide status updates on a regular basis to their supervisors or HR, depending on what was explained to them during the claim approval process.

Finally, any employee who has gone out for their own serious health condition should be required to provide a release to return to work before they return to work, to ensure they can safely perform the functions of their job. Remember, if you require a return to work release, you must notify them in writing when they begin their leave.

Following this established process for all family leave claims will enable you to ensure that all employees are being treated fairly, and it involves enough action on the employee’s side to help prevent abuses many employers deal with.

If you have questions or need some guidance, give us a call. Or if you’d like to attend one of our Family Leave sessions, attend Family Leave: Basic Compliance and Administration on September 18, or Family Leave: Advanced Skills for Family Leave Management on October 23.

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