Abuse of Intermittent Leave Under FMLA: Fact or Fiction?

Introduction.　 What excited the question was an unsolicited email touting a webinar about "curbing intermittent FMLA leave abuse." Is the abuse real or imagined? It is nearly an epidemic, according to a national human resources organization, and largely a myth, according to the U.S. Department of Labor.

The Background. The Family and Medical Leave Act, which has been in effect since 1993, is one of the so-called federal "entitlement" programs. Eligible employees of businesses with at least 50 employees have an "entitlement" to 12 weeks of unpaid leave each year because of the birth or adoption of a child or the serious health condition of the employee or members of his/her immediate family. (29 U.S.C. 2601　et seq.). To become eligible an employee must work for the employer for a minimum of 12 months (though those need not be 12 consecutive months) and must work 1,250 hours in the 12 months immediately prior to the start of leave.

The statute mandates, among other things, that an employee may take leave intermittently to deal with a "serious health condition" of the employee or of his/her spouse, child, or parent. (29 U.S.C. 2612). Some who actually have to "implement" the FMLA report that intermittent leave is abused. In fact, nearly 40 percent of human resource professionals who work for businesses subject to FMLA believed they had approved requests for intermittent leave that were not legitimate, according to a survey report published in 2007 by the Society for Human Resource Management ("SHRM").

The Abuse. The abuse manifests itself in the form of hard-to-disprove conditions (e.g., asthma, arthritis, migraines, back problems) that have a knack of flaring up just before and after weekends, holidays, and regularly-scheduled days off, on sunny days in the summer, on the first day of deer-hunting season, and just as the pertinent employee is about to be disciplined for excessive tardiness or absenteeism.

(Among the problems: It is a constant "challenge" to line up adequate staffing in the face of unscheduled absences taken with little or no notice; as also to keep track of the leave time that is often take in dribs and drabs - an hour here, 15 minutes there; and then there are the morale problems of co-workers who are called upon to pick up the slack, sometimes at the last minute, sometimes on short notice, and sometimes having to re-arrange their own vacation plans to cover for the co-worker who has taken intermittent leave.)

The Myth. But be of good cheer. The notion that intermittent leave under FMLA is abused is largely a myth. The U.S. Department of Labor said so in a report prepared by a Massachusetts consultant and titled Family and Medical Leave in 2012. "Very few covered worksites report suspicion of FMLA misuse (2.5%)." (p. 156). "Confirmed misuse at covered worksites appears to be even rarer: only 1.6% of worksites report any misuse." (p. 156).

Did human nature undergo a dramatic change in the five years elapsed between 2007 and 2012? The report of the Department of Labor in 2012 appears to be in conflict not only with the 2007 report of the Society for Human Resource Management but also with another report of DOL itself, a 2007 report about the response to a request for information about FMLA (a so-called RFI) that the Department of Labor had issued in December of 2006 -- Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information; Proposed Rule. (72 Fed. Reg. 35550 (2007)). The 2007 report of DOL cited to and quoted from a response submitted by the Society for Human Resource Management, and the RFI was the inspiration for the survey report of SHRM in 2007.

Examples Abound. Twenty of the 88 pages of the 2007 report of DOL were devoted to the subject of unscheduled intermittent leave. "With respect to employer comments, no other FMLA issue even comes close." (72 Fed.Reg, 35553). "[I]ssues involving unscheduled intermittent leave remain at the forefront of the debate regarding FMLA and its regulations." (72 Fed.Reg. 35581). The 2007 report is awash in stories about the administrative nightmares presented by intermittent leave, the abuses, and the morale problems among the workers who are dislocated, put upon, and called in to take up the slack. Here are some examples.

Item:　"Many employees will request FMLA as soon as they are placed in the discipline system for attendance." (72 Fed.Reg. 35577).

Item:　"Intermittent leave has created a hiding place for Employees who have absence issues." (72 Fed.Reg. 35578).

Item:　"FMLA usage plummets on December 25, Christmas Day each year when triple overtime is paid. . . FMLA usage is near its peak the day before Christmas and jumps the day after, but somehow nearly all those employees who have been out on FMLA feel better on Christmas Day and are able to come to work." (72 Fed.Reg. 35578, quoting a submittal of Southwest Airlines).

Item:　"Here is an example of what occurs on a REGULAR basis. An employee requests a vacation at the last minute as she received an unexpected invitation for a week at the beach. The manager denies the request, citing the numerous others who were granted vacation for the week in question. The manager simply cannot afford to allow one more person to take that week off as it would incur overtime for others to cover for this one. This employee chooses to head to the beach anyway and calls the manager, citing only those magic words, 'FMLA.'" (72 Fed.Reg 35579). (The term "regular" appears in all capital letters in the original.)

And yet, according to the 2012 report of DOL, the problem is trivial,　de minimis, virtually non-existent.

The Bureaucracy. Has human nature changed between 2007, when DOL and SHRM issued their reports, and 2012 when DOL issued another report about the Family and Medical Leave Act? There is a simpler explanation for the apparent inconsistency -- a bias against employers on the part of the Department of Labor. 　The first and second laws of bureaucracy are self-preservation and empire building. The existence of FMLA gives the Department of Labor just that much more to do.　

Then there is this term in the 2007 report -- the "regulated community." (72 Fed. Reg. 35565 and 35609).　(Where do people learn to talk like that? Is there something about living or working near the Potomac River that disposes otherwise normal human beings to coin such terms?)　　 Other indicators of bias (if not outright hostility) appear in the 2007 report. For one thing, the term abuse is regularly set off in quotation marks - "abuse." Second, employee comments about the wonders and benefits of intermittent leave are presented without editorial comment, whereas employer comments about misuse and "abuse" are routinely dismissed as "perceptions" and matters of "perceived abuse."

Like it or not, intermittent leave under FMLA is here to stay, and the misuse and abuse will never be eliminated for good. After all, the employee is "entitled" to it (i.e., "entitled" to take intermittent leave, not "entitled" to abuse intermittent leave).　

Employer Steps. There are some things the employer can do to diminish the risk. Here are some of the steps that can be taken. There are others as well.

• One is to stay small. 
• Another is to insist upon having a complete and accurate certification of serious health condition is permitted by the statute. The relevant certification forms (WH380-E and WH380-F) are available on line, and the virtue of using those forms is that it would be difficult to build a case of interference-with-leave around use of a form developed by the Department of Labor. The trick is to insist that the information be complete and precise, and not settle for less. 
• The next step is to keep track of the leave time. This can be simplified by making the "leave year" the same as the calendar year. (The risk of "stacking" - ending one calendar year with 12 weeks of FMLA leave and starting the next year with 12 weeks of FMLA leave - figures to be a small one for many reasons, not least because it takes 1,250 hours of work in the 12 months immediately prior to leave time to qualify for leave in the first place, and someone who "maxes out" on his "FMLA "entitlement" in one year might come up short on his 1,250 hours for the next year.) 
• Yet another means of controlling misuse of intermittent leave is to require the employee to use up all paid leave before taking unpaid leave. The statute allows paid leave and unpaid leave to run concurrently. The practice of requiring that paid leave be exhausted before unpaid leave can be taken controls the risk of an employee's taking the 12 weeks of unpaid leave required by FMLA and then extending the leave time by tacking on paid leave.

CONCLUSION

This phenomenon recalls the old saying that one bad apple spoils the whole bunch. The number of employees who actually abuse intermittent leave -- say, use a bogus certificate to qualify for leave and use the leave time to party or moonlight -- is probably relatively small. But they have a negative effect that is out of proportion to their numbers because even cases of honest requests for intermittent leave cause headaches for the managers who have to administer the request and for the co-workers who have to fill in for the one who is absent.