If you suspect abuse of FMLA, document carefully

Walk a fine line with abusers

Legal risks and frequent abuse by employees are two problems faced by occupational health nurses (OHNs) responsible for overseeing administration of the Family and Medical Leave Act (FMLA).

"As a manager of occupational health, the most highly litigious program that I oversee is FMLA administration," says Tamara Y. Blow, RN, MSA, COHN-S/CM, CBM, manager of occupational health services at Richmond, VA-based Philip Morris USA.

In an effort to streamline the abuse of FMLA claims, the company has denied applications based on the interpretation of a "serious health condition," leading to Department of Labor (DOL) inquiries and lawsuits, says Blow. "We have some employees who are abusing the system, and with these high abusers, we are walking a slippery slope and fine line," says Blow. "When we try to decrease absenteeism by closing those gaps, there is a strong correlation with DOL inquiries."

FMLA programs traditionally were managed by human resources, but many companies are putting this role on the shoulders of OHNs, notes Blow. "OHNs are best positioned to manage FMLA, because we have the knowledge of disease entities and are able to determine whether the FMLA request is plausible," she says. Also, human resource professionals lack medical credibility to defend an absence that was not covered if challenged by the DOL, she adds.

Don't "just say no"

The biggest litigation risk is to "just say no" to leave requests, according to John W. Robinson IV, JD, a shareholder in the litigation department in the Tampa, FL, office of Fowler White Boggs Banker. Your best protection is to have written family and medical leave policies and procedures, says Robinson.

"The most important document is a form approving leave and for how long exactly," he says. "It is also important to obtain and retain medical documentation for leave."

Blow says that "excellent documentation" and partnering with the legal department has resulted in successful outcomes for all the company's FMLA inquiries.

If employees have missed more time than they were approved for, showing concern for their wellbeing will "cushion" you from being reported to the DOL, advises Blow. "Tell the employee 'I'm concerned. Your doctor says you should miss about two days a month to regulate your blood sugar, but you are missing about 15 days a month. Let's do some health coaching and teaching,'" she says.

Once intermittent unscheduled absences have been approved, the FMLA administrator cannot really challenge the absence unless there is a pattern of abuse established over two to three weeks, says Blow.

At times, employees claimed to have left voicemails or submitted paperwork requesting leave, when there was no record of this, says Blow. "Then the union would challenge us. So, we created an innovative system," she says. The employee is given a form in triplicate, with copies for the employee and supervisor, with the reason for the leave written on a copy that is put in a locked box at the clinic, which is dated and time-stamped.

"Sometime the employee may write that they are taking a leave for a headache or flu, but their FMLA was approved for back pain, so the FMLA absence request would not be accepted," says Blow. "With the stamped coupon system, we are able to say, 'this is your handwriting and not what the nurse wrote from a voicemail message, and this intermittent absence won't be covered," she says.

An employer also can perform surveillance of employees if a pattern of fraud is suspected, but the employee must be informed of this surveillance in writing, and you need to justify why a particular individual is being targeted, says Blow. "There should always be systems and policies in place that give data in case the FMLA administrator is challenged by the DOL," she says. "I always tell my staff, 'documentation beats conversation.'"

Coverage is "tricky"

Successful FMLA claims come in three basic forms. An employer flatly denies family and medical leave, denies rehire after leave, or retaliates for a leave request, says Robinson. "I suspect private lawsuits on behalf of individual employees are more prevalent than U.S. Department of Labor suits," he says.

From a legal point of view, an occupational health professional is most likely to have FMLA issues regarding a medical doctor's prescription of therapy, he says. Physicians and occupational health nurses are working together to manage medical leave, more so than they did in the past, says Robinson.

If an employee wants treatment and there is a doctor's written approval of treatment, then an occupational health professional may need to consult with an attorney before denying this request, says Robinson. "If there is no doctor's prescription of therapy, then FMLA may not apply," he adds.

Not all prescribed treatment qualifies for FMLA leave, says Robinson. Also, a employee must work for a year to qualify, and the employer must have at least 50 local employees, with some key employees exempt from FMLA leave. "FMLA provides limited unpaid leave and does not guarantee payment for treatment," says Robinson. "So FMLA coverage is a bit tricky. If in doubt, visit your lawyer."

Sources

For more information on liability risks of the Family and Medical Leave Act, contact:

  • Tamara Y. Blow, RN, MSA, COHN-S/CM, CBM, Manager, Occupational Health Services, Philip Morris USA, P.O. Box 26603, Richmond, VA 23261. Phone: (804) 274-5805. Fax: (804) 274-5489. E-mail: Tamara.Y.Blow@pmusa.com.
  • John W. Robinson IV, JD, Shareholder, Litigation Department, Fowler White Boggs Banker, 501 East Kennedy Blvd., Suite 1700, Tampa, FL 33602. Phone: (813) 222-1118. Fax: (813) 229-8313. E-mail:jrobinson@fowlerwhite.com.