Preventing leave abuse: taking steps to get the most out of your workforce.

• Author: Stelter, Judson 'Jud' D.
• Position: Legal Brief

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.

Company policies 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.

FMLA

Employers have a number of avenues available to them under the FMLA to...