This morning, the day after the Super Bowl, 16.1 million of your employees will call in “sick.”

Over 6 million of these employees will face discipline for their call-in, according to UKG, which provides workforce management and human resource management services.

I didn’t need this survey to remind me that employers face an employee shortage the day after the Super Bowl. Many of my clients bemoan the arrival of football’s annual spectacle, knowing that the excitement of the day leads to the dreaded hangover of Super Bowl Monday.

Heck, one school district in Kentucky has even closed its doors today, recognizing the productivity challenge associated with the day after of watching hours of football, Usher, Taylor Swift sightings, and entertaining commercials.

Still, the stats from UKG’s survey are pretty fascinating:

• 14% of U.S. employees — about 22.5 million employees — plan to miss at least some work on Monday following the big game. This includes 1 in 5 managers.
• For those scheduled to work Super Bowl Sunday itself, about 3.2 million U.S. employees plan to call in sick or just not show up to work so they can watch the game.
• More than a quarter of all U.S. employees (28%) — roughly 45.1 million employees — say they’ll be less productive than usual at work on Monday after the Super Bowl this year.
• Over a third of U.S. employees (37%) believe the day after the Super Bowl should be a national holiday. These Kentucky kids clearly are onto something.

Employers, Don’t Sit on your Hands!

Stay vigilant, my friends. How can you minimize the chances of getting sacked by FMLA leave misuse after Super Bowl Sunday?

1. Confront the Employee if There is a Pattern of Call-Offs. A couple clients over the years have studied the frequency with which their employees call off work on the day or and the day after the Super Bowl. What they found was a group of employees who call in year after year on the day of or the day after the Super Bowl. Coincidence? We think not, and these employers rightfully discussed the matter with the employees. Where you see these patterns of suspicious misuse, don’t just sit on your hands. Set up a meeting with the employee immediately upon their return to work this week, inquire further about the reason for their absence, and confront them with the pattern. Press them to explain how the pattern (of calling off several Super Bowls in a row) is consistent with how their medical condition flares up and with their need for FMLA leave.

If you remain suspicious after the discussion, follow up with the employee’s physician. Don’t forget that employers have the right to reach out the employee’s physician where patterns of suspected misuse occur. Here, we follow the FMLA regulations (29 CFR 825.308) and ask the employee’s physician to confirm for us whether the pattern you’re witnessing is consistent with Johnny’s serious health condition and his need for leave. 

2. Discuss with the Employee Your Expectations During Leave. This one is quickly becoming my favorite go-to tactic. When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave. Ensure that your employee understands the call-in requirements (i.e., where to call into and what basic information you expect that the employee will provide about their need for leave), certification obligations, any check-in obligations, and your expectations for proper use of FMLA leave. Even tell them that you watch for patterns of misuse, like call-ins around the Super Bowl, so they are aware that you take this stuff serious and aren’t simply going to roll over. Summarize these expectations in a document that you provide your employee, who should sign off on it. This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave.

3. 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.   Require medical certification to initially verify the serious health condition, upon the first absence in a new FMLA year, and when the reason for leave changes.

4. Use the “Cure” Process to your Advantage When Following Up on Certification.  Where the medical certification form does not sufficiently answer the questions posed on the form or the health care provider’s responses tend to raise doubts, employers should immediately communicate with the employee to cure the deficiencies and/or shed light on any suspect information provided in the form.  In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies.  Here, you might consider asking questions that probe further into the information you find particularly suspect. Also, seek clarification whenever the employee has failed to cure and the certification remains incomplete or insufficient.  Additionally, consider using a physician or a nurse to contact the employee’s health care provider on the employer’s behalf (but remember: you must have the employee’s permission to contact the employee’s health care provider).

5. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy, process and forms are up to date, that you are employing the best strategies to combat FMLA misuse and that your FMLA administration is a well-oiled machine.