Cook County, Illinois (the county in which Chicago is located) currently faces one of the largest budget deficits in its government’s history. So, when the Cook County Board president (Toni Preckwinkle) tells the County Sheriff (Tom Dart) to cut $70 million from his budget, it tends to grab people’s attention. In this story, however, this proposed budget cut took a back seat to a notable statistic that grabbed the headlines: one out of every five employees in the sheriff’s office takes FMLA leave on any given workday. At the Cook County Jail, it’s one in four, as reported by the Chicago Tribune.
Before you are left aghast at these figures, allow me to point out a sad fact: the Cook County Sheriff is not alone. In my experience, I find all too many employers that suffer through FMLA absenteeism percentages well above the single digits. In fact, a new client shared with me that as much as 30% of its workforce is absent on any given workday, the far majority of which is FMLA-related.
When I hear of FMLA absenteeism figures as high as these, one thing is abundantly clear: FMLA abuse is rampant in that workplace. Fortunately for employers in this situation, there are several tools available to turn the tide and take back your workplace.
What Steps Can Employers Take to Fight FMLA Abuse? Employers can quickly put in place some measures that will reduce FMLA abuse and, in turn, potentially save you significant costs:
1. Require that Employees complete a written leave request form for all absences. Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system.
2. Prepare a list of probative questions you ask of all employees when they call in “sick.” I often hear from employers that the FMLA does not allow them to inquire about an employee’s medical condition or their need for leave. (Something to do with HIPAA, they tell me.) Nonsense! Under the FMLA regulations, employers have the right to obtain information from the employee about their need for leave. In fact, we have created a model questionnaire for our clients with questions that they can (and should) ask their employees when they call in an absence:
- What is the reason for the absence?
- What essential functions of the job can they not perform?
- Will they see a doctor for the injury/illness?
- Have they previously taken leave for this condition? If so, when?
- When did they first learn he/she would need to be absent?
- When do they expect to return to work?
3. Enforce usual and customary call-in procedures. Also under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer’s call-in procedures. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.
4. Check in on the Employee. A practice in which the employers calls the employee during the absence (or where the employer’s policy requires the employee to periodically call in) can go a long way to curbing FMLA abuse. When the lines of communication open, and the employer maintains contact with the employee, employers are often amazed at the positive results.
5. Certify … and Recertify! Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, all too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave. Keep your employees honest — require them to certify their absence and seek recertification at the earliest opportunity.
6. Surveillance. Where FMLA abuse is particularly rampant, courts have increasingly been supportive of the use of surveillance to ensure employees are being honest. Before doing so, however, make sure it is consistent with your personnel policies and any applicable collective bargaining agreements.
7. Conduct a comprehensive audit of your FMLA policy, procedures and use of leave. Work with your employment counsel to ensure that your FMLA policy is up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.
Making important (and perhaps even significant) changes now will save you money fairly quickly, and much more money in the long run. More importantly, it may save your business.