Typically, when employees request leave for family, medical, bereavement or other reasons, their requests are legitimate. However, on occasion some employees may try to take advantage of leave benefits. Here are some strategies to help you prevent leave abuse:
#1: Create written policies.
Maintain written policies that explain all the requirements of the leave benefit, including identifying who is eligible, the circumstances under which employees may take leave, and how employees may request leave. If you are providing the leave because it is required by a federal, state, or local law, make sure your policy aligns with the applicable law.
#2: Require advance notice.
Under most leave laws, employers may require advance notice when the need for leave is foreseeable. The amount of advance notice may depend on the law. When the need for leave is unforeseeable, employers may generally require notice as soon as practical given the circumstances. For example, employers may require employees who are sick to call in and speak with their supervisor before the start of their shift.
#3: Seek documentation.
Under many leave laws, employers can ask employees to provide reasonable documentation of the need for leave. However, certain laws do have restrictions. For example, some state and local paid sick leave laws prohibit employers from requesting documentation unless the employee has taken sick leave for more than three consecutive days. Even in the absence of a restriction, consider what, if any, documentation would be reasonable to require from employees, and make sure to apply your policy consistently.
#4: Concurrent leave.
If an employee qualifies for more than one type of leave, many employers will run the leave concurrently when permitted. This prevents employees from stacking leaves (returning from one leave only to go out on another type of leave for the same issue). To run concurrently, the employee must be eligible for both types of leave and the reason for the leave must be covered by both laws. For example, if the employee suffers a work-related injury and is on workers' compensation leave, the employer may generally count this time against the employee's federal Family and Medical Leave Act (FMLA) entitlement as long the employee is eligible for FMLA leave and the injury qualifies as a "serious health condition." Make sure to review the requirements of all leave laws so that you can properly designate all applicable leave.
#5: Check-in with employees.
When employees are on extended leave, employers are generally permitted to call the employee periodically to check-in on how they are doing, and their plans for returning to work, as long as they do so consistently for all employees on extended leave. However, if the check-ins are too frequent or are abrasive, they could be considered a violation of the law. Develop a communication plan based on the reasons for the employee's absence and make sure your contact does not interfere with the employee's leave rights.
#6: Prohibit moonlighting.
In some leave abuse cases, an employee may take extended leave to work for another employer (or themselves). Employers generally may prohibit employees from other work while on family and medical leave, sick leave, and other leaves taken because the employee is unable to work or is supposed to be caring for a family member.
#7: Prevent absenteeism around holidays.
Some employers see a rise in unscheduled absences around company holidays as employees call in "sick" the day before and/or after a holiday. Employers are generally permitted to require non-exempt employees to work the day before and after a company holiday in order to receive holiday pay. Typically, employers do not apply this policy to employees who scheduled the time off in advance. Note: This practice may not be applied to exempt employees, who must generally receive their full salary in any workweek in which they perform any work.
#8: Respond to concerns.
Train supervisors on how to respond to leave requests, enforce leave policies, and report suspected abuse. If you suspect abuse, launch a prompt, thorough, and impartial investigation. This should include, among other things, a meeting with the employee to verify the reasons he or she took leave. Present any evidence you have of a suspected policy violation and give the employee an opportunity to respond. Document the investigation and your conclusions. Be sure to comply with applicable laws and verify that the employee isn't protected from adverse action. If you conclude that the employee abused your leave program, consult legal counsel before subjecting the employee to disciplinary action.
When discouraging leave abuse, you must adhere to federal, state, and local laws. The strategies you use must be for legitimate reasons rather than to deter employees from taking leave to which they are entitled. Check your applicable leave laws to ensure compliance.