Defense Against FMLA Abuse

The FMLA doesn’t leave employers completely defenseless against those who choose to take advantage. Here’s what companies can do:

• Supervisors may require up to three medical opinions for employees taking leave for health reasons.
• Employers may deny leave to “key” employees: Salaried workers in the highest paid 10% of their work force. Employers must prove that the leave would cause “substantial and grievous injury” to the business.
• If an employee is out sick, and the illness turns out to be covered by the FMLA, employers may apply the leave retroactively if the employee is on paid leave and is still out when the FMLA qualifications are discovered.
• Employers may make leaves such as workers’ compensation leaves run concurrently with FMLA leave if the injury is covered by both laws.
• Employers may institute a rolling year policy to prohibit leave stacking.