An employee with a phony headache often becomes a genuine headache for a company. Leave abuse can lead to unnecessary overtime costs, low morale and loss of productivity, among other frustrations. Employers, however, are not without means to combat this problem.
Although a number of statutes implicate employee leave—such as workers’ compensation statutes and the Americans with Disabilities Act—this article focuses on the two most generally applicable sources of an employee’s right to take leave: the employer’s own policies and the Family and Medical Leave Act (FMLA). To maximize a company’s ability to combat leave abuse, it should implement effective leave policies and be aware of certain tools available under the FMLA.
It is always better to prevent a problem from happening, rather than trying to fix the problem once it occurs. This principle applies to effective leave policies as a strategy to avoid chronic leave abuse. Although there is no silver bullet, the following are suggestions for leave policies and practices that employers should consider:
Distinguish between “excused” and “unexcused” absences. Any absence that occurs without the employee complying with all of an employer’s prerequisites for granting leave should be deemed unexcused.
Require employees to provide adequate notice before leave is taken, unless it is a medical emergency and prior notice is not possible. Even where there is a medical emergency, however, employers should require notice as soon as practicable.
Identify a specific and trusted individual—preferably an HR professional—that all employees must notify to take sick leave. This will ensure the company’s policies are consistently applied.
Establish clear, written disciplinary measures for unexcused absences and apply them consistently. The key here is that the discipline needs to be clearly articulated to all employees. A vague and inconsistently applied policy will not dissuade the recalcitrant employee as effectively as a policy that informs the employee of a negative consequence that is certain to follow an unexcused absence.
Faithfully document absences and record whether the absences were excused or unexcused.
Consider programs that reward good attendance. Employers should consult with counsel when implementing such a policy, however, to avoid improperly penalizing employees taking protected leave.
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