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6. Document

Make sure leaves are properly documented, particularly with respect to FMLA. The

U.S. Department of Labor publishes a form for an employer’s response to a request for

FMLA leave which can be found at: http://www.dol.gov/libraryforms/go-us-dol-

form.asp?FormNumber=36&OMBNumber=1215-0181.

7.

Take Affirmative Steps to Prevent Abuse

Both the FMLA and ADA contain provisions designed to prevent employee abuse.

For example, if an employee seeks a leave of absence, the employer can require the

employee’s physician to respond to requests for information or have the employee submit to

a medical examination. The FMLA allows employers to require a second or even third

medical opinion if it has a good faith reason to doubt a medical certification submitted by the

employee’s provider in support of FMLA leave. Similarly, employers can require

“recertification” of a serious health condition when an FMLA leave takes longer than

anticipated.

8.

Consider the Effect of an Extended Leave of Absence As Soon As Possible

Many employers get caught in the trap of providing a short-term leave of absence as

an accommodation without anticipating the impact that the grant of a request for short-term

leave may have on a subsequent request for extending the leave. Consequently, an employer

that granted a short-term leave often cannot reverse position and claim that extension of the

leave would cause an undue hardship. Depending on the circumstances, an employer may be

well advised to address the issue immediately by informing the employee requesting leave

that the employer may not be able to extend leave.

60

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