April 2009

The Family and Medical Leave Act (FMLA) requires covered employers to grant eligible employees up to 12 weeks of unpaid leave during a 12-month period for specified family- and medical-related reasons. Although administration of FMLA leave associated with the need to care for a newborn or newly adopted child can be quite straightforward, handling leave requests based on an employee’s own serious medical condition, or the need to care for an immediate family member with a serious medical condition, can be more complicated, when questions about the authenticity of the medical reason present themselves.

In any company, most employees will respect the rules and only request FMLA leave when they need and are legally entitled to it. But as any employer knows, there always seem to be a few employees who try to bend the rules and play the system. What can employers legally do to minimize abuse of FMLA leave requested for medical reasons?

A first step in dissuading attempts at fraudulent FMLA medical-based leave is to require that employees document the need for leave with medical certification. An employer may require that, for any leave taken due to a serious health condition, the employee provide a medical certification confirming that a serious health condition exists. Certification may be requested whether the stated reason for the leave request is the medical condition of the employee or of an immediate family member. The employee must be allowed at least 15 calendar days to submit the certification.

When the employee supplies the certification, examine it to determine whether it does in fact document a serious medical condition, and whether it is complete and authentic. If the certification is incomplete, require that the employee correct it. If you have any suspicions about the authenticity of the stated reason—for example, if you suspect that the health care provider may be exaggerating the seriousness of the medical condition at the request of the employee—the law allows you to require the employee to submit a second certification. This is at company expense, and you can choose the provider for the second opinion. If the opinions conflict, the employer can require a third — and final — certification.

Of course, certifications that do support the employee’s or immediate family member’s serious medical condition should result in leave approval, just as those that do not document this should result in the leave request being denied.

An area that can cause particular frustration for employers involves requests for intermittent leave. FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule when medically necessary to care for a seriously ill family member, or because of the employee’s serious health condition. To get a handle on whether any employee might be abusing this FMLA leave provision, look for patterns in employees’ FMLA leave requests. Does the employee’s medical condition always seem to flare up on Mondays, Fridays, or days preceding and following holidays? Do intermittent leave requests always coincide with school holidays, or certain weeks in the summer? Employees who require or desire time off work during such times should not be looking to FMLA to provide it. Employees who do legitimately need intermittent leave for foreseeable medical reasons should work with their employer to schedule leave so as to not unduly disrupt the employer’s operations.

Although implementing strategies to combat FMLA fraud, it’s also important that your business doesn’t suffer when employees are out on FMLA leave, whether legitimately or not. If your business has a pattern of FMLA-based absences at noticeable times, schedule workers accordingly.

Correct administration of FMLA leave is an important compliance issue for employers. Lengthy final regulations were issued by the Department of Labor in late 2008, and were effective January 16, 2009. These regulations include provisions on establishing a “serious health condition” and clarifying administration of intermittent and reduced schedule leave, and on what employers can do regarding inadequate medical certifications.

As health care costs have risen, employers have searched for ways to bring these costs under control. When cost shifting and plan redesigns did not bring about desired results, attention turned to ways to engage employees more actively in managing their health. Health risk appraisals (HRAs) are considered by many to be the first step in engaging employees in their health management.

An HRA is a tool for gathering information on various aspects of one’s health and gauging appropriate interventions and follow-up care. An HRA usually consists of a questionnaire, frequently completed online through the health insurer’s or wellness program provider’s Web site, that gathers information on various health aspects: weight/body mass index, nutrition, exercise habits, lifestyle, personal and family medical history, etc. The HRA might be in conjunction with screenings for blood pressure, cholesterol and blood sugar levels. The HRA provides feedback to the employee on health status and suggestions on how to improve. These might include directing the employee into a disease management program, to a nutritionist, or for follow-up care with the employee’s regular physician.

On paper, an HRA seems like a logical way to begin to become more involved in one’s personal health management. Yet, many employees decline to participate when an HRA is available. This reluctance might result from concerns about the employer’s motives in offering the HRA. Employees might wonder whether their answers to the questionnaire and any data gathered about their health will be kept confidential. They might be concerned that if health information is shared with their employer or insurer, they will suffer negative consequences, such as higher insurance rates or even a loss of coverage.

Though these fears are unfounded, employers need to address them head on in order to convince employees of the privacy of the information contained in the HRA. Be sure employees are aware of their HIPAA privacy rights, that personal health information is protected from disclosure, and that the information gleaned from the HRA is for their use and benefit, not for that of the employer or insurer.

Beyond addressing employee concerns about privacy, probably among the most effective communications involving HRAs answer the employee question, “What’s in it for me?” Make sure that your HRA communications include these messages:

• Completing an HRA will give you important information about your health, and knowledge is one of the best tools you can have in staying healthy.
• What you learn from an HRA can alert you to any health issues that you might be prone to or that are in their early stages. This information can lead you to appropriate screenings, preventive care and disease management programs.
• If you stay healthier your health care costs will probably be lower over time. By dealing with a health issue at an early stage your treatment options are likely to be wider and less expensive.

Many employers take the additional step of offering incentives for participation in health risk appraisals. In a survey from Watson Wyatt Worldwide and the National Business Group on Health, more than half of the firms responding (53%) offered employees financial incentives for completing an HRA. Premium or deductible credits were more effective than cash at boosting HRA participation—73% of companies that offered premium credits and 67% that offered deductible credits had at least half of their workforce participate in an HRA, compared with 17% that offered cash and 12% that offered no incentive.

An HRA is an important first step toward engaging employees in their health management and can be the entry point for other wellness programs. By encouraging employees to participate in an HRA, you’ll be helping them to maintain better health and likely saving them, and your company, health care costs down the road.