By 2005, officials at Nokia Siemens Networks recognized that they were having difficulty coordinating various absence-related requests, including short-term disability and Family and Medical Leave Act claims.
So they decided to create an ombudsman-style position, an individual who could help employees coordinate the related paperwork—FMLA and short-term disability typically run concurrently—to document their leave and avert any payment difficulties.
Soon that position developed into a broader role, says Charlotte Gambrell, who manages and directs North American benefits for Nokia Siemens Networks. The telecommunications company, which employs about 2,200 North American employees, separated from Nokia in 2007.
These days, the ombudsman might intervene when a snag develops related to an FMLA claim, such as when paperwork is required from a physician, Gambrell says. “What the role of this person is, is to eliminate any sense of worry for our employees, especially when they have difficult times. We realize that at those times it’s very overwhelming for them.”
Sharyn Tejani, a senior policy counsel with the National Partnership for Women & Families, cites the ombudsman concept at Nokia Siemens as a great strategy to streamline any logistics associated with FMLA use, particularly if the leave involved is intermittent.
Rather than taking off a block of time under FMLA, such as for maternity leave, some employees may take more sporadic absences, such as when a migraine flares or when they need medical treatment. But there is some concern over the degree to which the federal law’s protections may be abused, so an employee’s sporadic use of FLMA must be monitored closely.
Providing FMLA job protection in such situations is one of the best attributes of the 1993 law, says Tejani, whose group advocated for the law’s passage. After all, chemotherapy might require only several hours away from work each week, and a mother cannot predict when her child will suffer an asthma attack. “For certain conditions, there really is no other way of doing this,” Tejani says. “It’s really the type of leave that will save your job.”
Gail Scott, a partner at MorningStar Health, which specializes in health and productivity management, including FMLA, cautions that employers need to stand guard against malingering employees, who can create a ripple effect across an organization.
“If FMLA is not being administered well by a company, it can become epidemic,” Scott says. If “a significant percent of the population has an approved claim for intermittent use for a chronic condition, they can come and go as they please and are not subject to the company’s attendance policy for a total of 12 weeks a year.”
Use vs. abuse
This year Scott spoke on a FMLA panel at the 2010 Health and Productivity Forum in San Antonio and talked about some steps a PepsiCo facility took to get a better handle on high FMLA use at one of its facilities.
At the facility, 2.1 percent of total employee work hours, or roughly 17,000 annually, were classified as time off under FMLA, according to data presented. The facility’s rate was more than three times the national average of 0.6 percent in 2007. “It’s kind of a staggering number when you first look at it,” said Javier Feliciano, a PepsiCo senior manager of human resources, who also spoke at the San Antonio FMLA panel
Feliciano, who has since left the company, said that some managers were approving requests without asking questions or providing a sufficient review. The estimated cost of lost productivity per year: $577,000.
Intermittent FMLA use can be particularly disruptive in some production-related work environments, says Carl Bosland, a Denver attorney who has written several books related to the federal law. For example, if an employee announces that he or she needs to leave immediately, he says that “it can become very difficult to make sure you have the bodies you need to literally keep the line moving.”
But Tejani maintains that concerns about abuse or disruption are overblown. After all, employers manage to handle other situations in which workers suddenly call in sick for non-FMLA reasons.
Clarifying FMLA requests
Indeed, there are procedures to prevent abuse. By working carefully through the forms provided by the Department of Labor and adhering to the related deadlines, employers can clarify exactly what medical information they will need, says Charlie Plumb, chair of the labor and employment practice group for McAfee & Taft. The new medical certification form, issued in the wake of the 2009 regulatory changes, is quite helpful, he says. “It’s much more robust and beefed up and it requires a lot more detailed information before you can approve intermittent leave.”
For example, if an employee suffers from migraines, the physician will be asked to predict how often the migraines will occur and how long the employee will need to be off from work each time, Plumb says. If the pattern begins to differ substantially, the employer can circle back to the physician for further clarification.
The 2009 regulations also allow employers—as long as they are not a direct supervisor—to contact the doctor’s office directly if they harbor suspicions about the medical certification’s authenticity, Plumb says. For example, an employer might be suspicious if the handwriting looks like the employee’s or if a word such as bronchitis is misspelled.
Employers also should pay close attention to patterns of absences, particularly if they tend to fall on Mondays and Fridays, Scott says. After all, she quipped at the San Antonio meeting, how does an illness know what day of the week it is?
At the PepsiCo facility, additional training and standardization of procedures made a significant difference, according to the data presented. The initial goal had been to reduce FMLA work hours from 2.1 percent of the total work hours to 1.6 percent in the first year. But in the end, the percentage of FMLA hours declined to 0.8 percent of the total, resulting in a labor cost savings of nearly $257,000.
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