Stress Leave Under the FMLA - Greenberg Traurig LLP

Stress Leave, from page 42
Require medical certification. One of
the best tools that an employer has in the
quest to combat FMLA abuse is the medical
certification form. Under the FMLA,
an employer is permitted to obtain necessary
medical information to determine
whether an employee suffers from a serious
health condition, thus qualifying him
or her for FMLA leave. If the employee
does not provide the medical certification,
then the absence will not be considered
FMLA leave.
Use clarification or recertification mechanisms.
If the information provided in a
medical certification is insufficient because
it is vague, ambiguous, or otherwise nonresponsive,
an employer has a right to require
that the employee provide additional information.
An employee who refuses to allow
the employer to seek clarification may be
denied the leave.
Consider obtaining permission to contact
an employee. The FMLA generally permits
an employer to request periodic reports on
the employee’s status and intent to return
to work and recertifications. Nevertheless,
an employer must fight the tendency
to take contact with an employee to the
extreme. Employers should remember that
FMLA leave is indeed unpaid leave, and
so communications with an employee on
FMLA leave may entitle that employee to
paid wages. Accordingly, employers should
centralize and monitor communications
and make sure that such communications
are limited. An employer might even consider
securing an employee’s authorization
to contact him or her during his or her
FMLA leave regarding work- related issues.
Consider creative, preventative strategies
to curb abuse. Employers may also
consider creative approaches to combat
abuses still within the parameters of the
FMLA. For instance, employers might
remind or request that employees schedule
their medical treatments outside of the
work day. Employers may also simply add
“ability to handle stress” to a specific position’s
job description. An employer could
even transfer an employee to another position
if the intermittent leave is too disruptive
to the position.
Although a tricky maze, employers
can successfully navigate the FMLA and
ensure that they are appropriately administering
leave polices for their genuinely
stressed-out employees even while protecting
against FMLA abuse.
82 ■ For The Defense ■ February 2013