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Advice to employers dealing the Abuses of the FMLA

Treating the FMLA Abuse Epidemic

By Betsy Davis

Betsy Davis

Employers: Know your rights under the FMLA

Concerned that your employee is abusing his/her rights under the Family Medical Leave Act (FMLA)? Properly administering the FMLA can be a minefield. Faced with new and creative requests by employees for time off, employers need guidance in navigating FMLA regulations.


The employer's best strategy for thwarting misuses of FMLA leave, is to know and exercise rights under the FMLA. Although it is not required to obtain a medical certification in support of an employee's request for leave, if an employer chooses to do so, it is limited in what medical information it may seek as well as the process it must go through to obtain that information. Nevertheless, the employer has limited rights to information to verify the need for leave.

Under the FMLA, the employer may require the following:

  • Request medical certification from the employee's health care provider or the health care provider of a covered family member.

  • Ensure that the certification contains the following required information:

    • date the condition commenced,

    • the probable duration of the condition,

    • appropriate medical facts regarding the condition,

    • a statement that the employee is needed to care for a covered family member or a statement that the employee is unable to perform the functions of his/her position,

    • dates and duration of any planned treatment, and

    • a statement of the medical necessity for intermittent leave and expected duration of such leave.

  • Inform the employee of the consequence of not providing the requested certification.

  • Advise the employee if the certification is incomplete and give the employee an opportunity to supply the required information.

  • With the employee's permission, have your health care provider seek clarification or authentication of the information in the certification.

The fair application of FMLA leave rules is one of the most important challenges of employers and responsibilities of HR professionals today. Understanding and using the rights that the FMLA provides to employers will cut down on employee abuses of the law. An employer's FMLA and other leave policies should be crafted with an understanding of the FMLA to provide the maximum protection possible for the employer. If you need assistance in drafting such policies or determining whether a request for information is appropriate, please call Betsy Davis at (804) 697-2035.

[1] Under the FMLA, eligible employees may take up to 12 weeks of unpaid leave in a 12-month leave period for certain family and medical reasons, including the employee's own serious health condition or the serious health condition of a spouse, child or parent.