VanAntwerp Attorneys, LLP
Phone: 606-618-0698

Lowering risks of potential FMLA abuse

In the region where we practice, the borders of three states converge. This can create unique legal dynamics. For example, if an employer in one state hires a worker from one of the others, determining applicable employment laws may become complicated.

The issue of family leave rights for employees would seem to be straightforward. Employers in Kentucky, Ohio and West Virginia are subject to the federal Family Medical Leave Act. That law provides up to 12 weeks of leave, unpaid, to eligible workers, without the risk of job loss. The problem that many employers encounter is that some workers abuse the system. They take leave time regularly and intermittently. This has prompted some to refer to FMLA as the "Friday-Monday Leave Act."

What employers can do

Employers obliged to grant FMLA leave should have policies in place to avoid being taken advantage of by employees. For some, this might involve requiring employees to first use accrued paid time off for some or all requested leave. As long as the paid time is used for FMLA-protected reasons, job protection remains in force.

Experts in FMLA policy know an array of tactics exist to counter FMLA abuse. For example, while FMLA cannot be denied to eligible workers, employers may require that leaves be requested in writing. The forms could legitimately ask for information about the reason for the leave and an estimated time of return.

Some advisers recommend employers institute rules requiring employees to make two phone calls to seek leave time. The first call would be to the supervisor to whom the employee reports, so that he or she can find a replacement worker if necessary. The second call would be to the department that administers FMLA leave. This might be human resources or some third-party administrator.

There is legal precedent for this approach. In at least four recent cases involving the two-call standard, appeals courts have upheld dismissals of FMLA claims on grounds that employees failed to complete the proper protocol for requesting leaves.

Employers can take heart that they are not without certain rights when it comes to protecting their interests. But to be sure their action comports with the law, it is best to get input from experienced legal counsel.

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