Do you suspect FMLA fraud? Don't assume hands are tied
You don't have to ignore abuse of intermittent leave
If you are charged with administering the Family and Medical Leave Act (FMLA), you probably find it difficult to effectively monitor intermittent leave. "Occupational health nurses (OHNs) are concerned about employee abuses," says Rose M. Matricciani, RN, JD, partner at the law firm of Whiteford, Taylor & Preston in Baltimore. "However, they want to be sure that they do not violate any of the provisions of the FMLA. Certainly, litigation and lawsuits are possible, and avoiding these situations is a paramount concern."
If you are concerned that an employee is abusing intermittent leave under FMLA, take the following actions:
Request medical certification for a serious health condition.
"All too often, a 'serious health condition' as defined by the FMLA, can include almost anything," says Howard M. Sandler, MD, president of Sandler Occupational Medicine Associates in Melville, NY.
Determine that the physician knows the essential job functions, that the employee has indeed been evaluated appropriately, and that the condition really does interfere with the person's ability to be at work and do the job, Sandler recommends.
In addition, ask for recertification if you have doubts about the employee's reason for his absence, advises Matricciani.
Request a second opinion if you suspect the validity of a medical certification.
However, requiring the employee to get a second or third opinion examination often "isn't really worth it," according to Sandler. "Relatively few clinicians, especially those not in occupational or environmental health, have an understanding of what the medical standards are for the essential job function requirements," he says. Without this information, the second or third evaluators rarely provide essential information.
Still, you can verify the physician has some way of justifying his medical opinion, such as generally accepted practice guidelines. "This helps to make sure that the doctor isn't simply being told by the patient, 'Look, I have this problem, I need to have this form filled out, and here's how much time I need off,'" says Sandler.
Identify trends in use of leave.
"For example, is the employee taking leave during the same time of year, around a holiday, birthday or, for parents, when school is not in session? Does the use of leave appear to be increasing and indicative of a chronic condition?" asks Matricciani.
A tracking system can help you spot patterns of change or abuse. "With chronic intermittent leave, which is where you get the most problems, employees may be taking Mondays and Fridays off all the time. No disease is a weekend oriented disease," says Sandler. "This gives you the ability to red flag certain people."
Follow procedures religiously and document thoroughly.
OHNs are the "eyes and ears and documenters," and can determine how well the employee is performing on the job, then communicate this information to their corporate medical director or the physician service provider, says Sandler.
"You might see that a pattern doesn't make sense. Or if the employee indicates they aren't taking their medication, you can get back to the treating physician and say, 'We have evidence they're not taking their medication so you might want to have them come back to your practice,'" he says.
If you can identify potential fraud, then you can put a stop to itbut you can't do that with just a feeling or opinion. "Ask the employee how they are doing, what they are finding difficult, and what you can do to help," Sandler suggests. "You can certainly offer them participation in disease management programs. If you suspect fraud of any sort, you are not required to just ignore it, but you do need an objective basis."
Require updates on the employee's status.
Employees may not go to their physician for six months, and then show up right at the time they are required to, in order to be maintained as a "serious health condition," says Sandler.
One problem is it's almost impossible for OHNs to determine the amount of time off needed for a given individual. "There are rough guidelines for how long somebody should be off for an acute event, but there are no published guidelines out there for any of the chronic diseases such as asthma or depression," says Sandler.
It's necessary to follow an employee for a period of time to establish whether the person is getting better, getting worse, or is noncompliant with their medications, says Sandler.
Hire an investigator if necessary.
"Certainly, hiring an investigator is not the first thing that an employer thinks about when trying to determine if FMLA leave is being abused," says Matricciani. "However, in situations where there is a serious concern about the use of FMLA leave, an investigator can be key in ascertaining abuses."
SOURCES
For more information about abuse of the Family and Medical Leave Act, contact:
- Rose M. Matricciani, Partner, Whiteford, Taylor & Preston, Baltimore, MD. Phone: (410) 347-9476. Fax: (410) 234-2355. E-mail: [email protected].
- Howard M. Sandler, MD, President, Sandler Occupational Medicine Associates, Melville, NY. Phone: (631) 756-2204. Fax: (631) 756-2213. E-mail: [email protected].
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