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The Oregon Family Leave Act (OFLA) and federal Family and Medical Leave Act (FMLA) provide eligible employees who work for covered employers with up to 12 weeks (sometimes more) of protected time off work. Most employees use OFLA/FMLA in good faith. However, there are some bad apples who misuse OFLA/FMLA leave, especially in unscheduled, intermittent ways.

So, how can an employer lawfully reduce OFLA/FMLA abuse? Employers can:

Train managers and supervisors

Managers and supervisors are the eyes and ears of a company. They are the first to hear that an employee may need time off for a protected reason, so they need to be trained to recognize when an employee is off work for a protected reason rather than an unprotected reason. They also need to be trained on what they can and cannot ask when an employee is calling off work. Most importantly, managers and supervisors need to know who to go to within the company to correctly manage OFLA/FMLA issues as soon as they arise.

Ask the right questions

Many managers and supervisors are reluctant to ask questions of an employee calling off work for fear of saying the wrong thing. But asking the right questions can help prevent OFLA/FMLA abuse because employees know they can’t simply call out without providing some explanation. At a minimum, when an employee calls off work, he or she should be asked to state the general reason for the absence (sickness, car trouble, wait for a repairman, etc.) and when he or she expects to return to work. If the employee says anything that resembles a family- or medical-related issue, Human Resources should follow up to see if it is a potentially qualifying absence. If the employee has not adhered to the company’s call-in policy, he or she should provide an explanation. If the employee is already certified for FMLA leave, he or she needs to specifically reference that the reason for the absence is the qualifying FMLA condition as opposed to something else.

Require employees to submit applicable certifications

When an employee gives notice of a potentially qualifying absence, always ask him or her to submit an appropriate certification from a health care provider. The forms published by the U.S. Department of Labor can be used for either OFLA or FMLA absences and include everything an employer can ask and nothing it cannot. These forms, when sufficiently completed, provide specific information regarding the nature of the absence, the expected duration of the absence, and, for reduced schedule or intermittent leave, the estimated frequency and duration of time needed.

Carefully track absences

Once an employee is certified to take OFLA/FMLA leave, the employer should carefully track all absences to distinguish those covered by OFLA, FMLA, both or neither. Oregon’s Bureau of Labor and Industries’ Technical Assistance for Employers publishes a helpful Leave Tracking Form for this purpose. If an employer does not have enough information at the time the absence is incurred to determine whether it is covered by OFLA or FMLA, now is the time to meet with the employee to obtain additional information. It can be harder to go back weeks or months later to determine whether a particular absence is covered. Staying on top of absences by tracking them also lets employees know that their employer is paying attention.

Recertify when permitted

An employer may request recertification from an employee if the circumstances described by the previous certification have changed significantly or if the employer receives information that casts doubt upon the employee’s stated reason for the absence. For example, if a medical certification states that an employee will need leave for migraines for one to two days at a time one time per month, but the employee calls out twice in one month for four days at a time, then the increased duration and frequency of the absences might constitute a significant change in circumstances allowing the employer to request a recertification. Likewise, if an employee is on FMLA leave for four weeks due to knee surgery and recuperation, and the employee posts pictures of himself skiing during the approved FMLA leave period, such information might be sufficient to cast doubt upon the continuing validity of the certification, thus allowing the employer to request a recertification.

Meet with the employee

Once OFLA/FMLA leave is approved, especially intermittent leave, meet with the employee to go over the call-in requirements, what information he or she needs to provide when calling in, and the consequences for failing to follow the call-in policy or providing medical certifications when requested. Meet with the employee again if he or she is not following the stated expectations, if the employee is using more leave than is certified, or if there is reason to suspect abuse. Being upfront about concerns has the dual purpose of curbing abuse, but also ensuring those with a genuine need for leave receive it.

Using these tools will help any employer manage OFLA/FMLA and reduce the potential for abuse. Employers with questions about specific leave situations should seek advice from an employment law attorney who is well-versed in managing leave laws.

Amy Angel is a partner at Barran Liebman LLP in Portland. She advises employers in a variety of matters, including those involving Oregon sick leave law, the Oregon Family Leave Act, the Family Medical Leave Act and the Americans with Disabilities Act. Contact her at 503-276-2195 or [email protected].