FMLA Challenges in a Next-Generation Manufacturing World

Successful next generation manufacturers must work with their customers and suppliers as true partners in order to rapidly produce high-quality products. Almost universally, next generation manufacturers need motivated and highly skilled employees who are flexible and able to respond to changing manufacturing needs. In many “just-in-time” supplier arrangements, tier 1 and tier 2 suppliers must schedule production to mirror the schedules provided by their OEM customers. In the automotive sector, rising demand requires many manufacturers to mandate 6 and 7 day operations each week, and has increasing workloads for employees when conditions are often hot (it is summer!!) and not particularly comfortable.

As employee workloads increase to keep pace with gangbuster production, human resources managers are seeing a corresponding increase in intermittent FMLA use. Frequent intermittent leave requests often limit an employee’s ability to work all scheduled hours, including overtime. Anecdotal evidence suggests that intermittent FMLA leave requests are at an all-time high. Because employees can call off with little notice, manpower shortages involve higher costs for temporary staffing employees who are typically unfamiliar with the supplier’s operations. The FMLA challenge is particularly difficult when certain employees appear to be abusing FMLA leave to enjoy days off when the plant is operating at full throttle. Suppliers must permit employees to take approved FMLA. Without interfering with employee rights and exposing the company to liability, employers can take the following actions to help minimize the risk of FMLA abuse and promote greater productivity:

Steps for Keeping FMLA Abuse in Check

• Scrutinize the Medical Certification Forms. Invariably, health care providers who complete FMLA certification forms provide inconsistent information. For instance, the form may state that the employee is not incapacitated from working, but then go on to request FMLA leave for 1 or 2 times per month, for up to 2 days per episode. Other times, the doctors’ estimates are frankly unbelievable, such as an employee with migraine headaches being limited to working only 50 hours per week. Employers should carefully review the medical certification form to make sure that it is complete, accurate, and generally consistent with what you would expect for a particular medical condition.

• Utilize the Second Opinion Procedure. The FMLA regulations provide employers a process that involves referring the employee for a second medical opinion when the employer has reason to doubt the validity of the employee’s medical certification. While this must be at the employer’s expense, it is sometimes valuable to have an independent health care provider evaluate the employee and his or her request for FMLA leave. When the second opinion differs from the employee’s doctor, a third and binding opinion is permitted.

• Recertify and Challenge Employees. The FMLA regulations also include a recertification process that can be used if the employee exceeds the frequency and duration of a previously-approved intermittent leave. For instance, if an employee approved for 1 day per month for migraine headaches calls off for 3 or 4 days, recertification is probably advisable. In addition, the FMLA regulations permit an employer to informally question the employee about the need for leave, and about his or her activities during the time off, such as whether the employee intends to go to the doctor. Employers should adopt policies reflecting such practices.

• Consider Transfers. In some cases where an employee is on an approved intermittent leave and is taking leave on a foreseeable basis for planned medical treatment, such as to attend dialysis treatment, it may be possible to transfer the employee from a production assembly position to one that is more accommodating. The employee need not have the same duties, but pay must be comparable.

• Adopt Anti-Abuse Strategies. In extreme cases, next generation manufacturers should consider surveillance when it is apparent that an employee is exercising FMLA leave in patterns (such as Fridays and Mondays) or in conjunction with holidays. In some cases, surveillance could yield persuasive evidence of abuse. The employer may also consider adopting policies that require pay only when an employee works before or after a holiday, and policies that require employees to certify that they are using FMLA for the stated purpose.