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Don't Let Employee FMLA Abuse Turn You Into A Grinch

November 16, 2023

Anthony Herman

With the holidays approaching, many employers find themselves in the unenviable position of needing to adjust on the fly to employees unexpectedly missing time. While employers may preserve some rights to enforce notice and verification requirements for employee leave through well-drafted PTO policies, many employers throw their hands up and surrender when it comes to leave covered by the Family and Medical Leave Act (FMLA).

I have counseled countless clients who would rather just let an employee more quickly exhaust the 12 unpaid weeks provided by the FMLA than spend the effort contesting the employee’s actual need for the time off. However, this often just exacerbates those employers’ problems around the holidays, as the number of employees on FMLA not-so-unexpectedly skyrockets (along with the employees who had already put in for PTO for other reasons).

With that in mind, here are some simple FMLA tips that can help keep your holidays merry and bright:

Calculating Leave

  • On May 30, 2023, the DOL published an opinion letter clarifying how holidays affect the calculation of intermittent leave under the FMLA. (Intermittent leave, for those who have not had the pleasure of administering it, allows employees to take their 12 weeks of leave over the course of a 12-month period, rather than in one block.) The opinion letter gives an example of how to properly calculate FMLA intermittent leave during a workweek that includes a holiday. Suppose an employee normally works Monday through Friday. Now suppose your workplace is closed on Thanksgiving and the Friday immediately thereafter. What happens if an employee needs FMLA leave for Wednesday through Friday of Thanksgiving week? The amount of FMLA leave is only one day (Wednesday), so long as the employee would not have been scheduled to work on the holiday(s). </br></br>
  • On the other hand, if the employee is taking a larger block of FMLA leave, e.g., at least one week, and the holiday occurs during that larger block, the employee is still credited with taking the full workweek of leave.

Fighting Abuse

  • Employers are too often too timid when asking employees who call out for additional information. When an employee calls out of work, an employer should ask, at the very least, (i) why they will be out; (ii) whether they are seeing a medical provider; (iii) whether they have taken leave for this reason before; (iv) when they first learned they would need to be absent; and (v) their expected return date. These questions should provide employers with enough information to know whether FMLA is even in the picture (or the Maryland Healthy Working Families Act, or the Americans with Disabilities Act, or the Flexible Leave Act, or short-term disability ... you get the picture).</br></br>
  • Employers can require that employees complete a written leave request form for all absences. Although an employee may still put an employer on notice if s/he verbally states s/he needs the leave for an FMLA-qualifying reason, having and enforcing a write-out policy tends to have a prophylactic effect. It also eases administration of the leave. </br></br>
  • Don’t be afraid to require recertification! Does the employee repeatedly take “FMLA leave” before or after company holidays? If so, are these absences consistent with the certification form previously provided by the employee’s healthcare provider? Is the certification form even still valid? These are questions to go over with an RKW attorney, who may assist you in seeking recertification from the employee.

I hope these tips can help provide you and your workforce a more restful holiday season.

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