How to spot and stop FMLA abuse

Author: Jeanna Crocker, J.D., SHRM-SCP, Senior Legal Editor

Employees who abuse the Family and Medical Leave Act (FMLA) do so for various off-the-wall reasons: to serve a jail sentence, attend a criminal court hearing, travel for leisure, or work elsewhere, for example. But even if the fraudulent conduct is outrageous, whether an employer prevails in an FMLA leave abuse case often depends on whether it has conducted an exhaustive investigation.

Don’t be afraid to hold employees accountable

Responding appropriately to FMLA leave requests while keeping an organization running smoothly can seem like a daunting task. To minimize disruption in your workplace, you’ve got to know how to detect and deal with employees who abuse FMLA leave. Stopping leave abuse requires an understanding of what you can and cannot do under the law. And while walking this compliance tightrope raises many questions, one thing is clear—no employer should be afraid to hold employees accountable for their actions for fear of legal entanglements, especially since FMLA rules and regulations set forth the right to limit FMLA abuse.

Sometimes the writing is on the wall, like with Monday/Friday absences and frequent midday doctor’s appointments. Some abuse may be more subtle; but regardless of what the employee is doing to work the system, the question is—what can you, as an employer, legally do about it?

Employees have grown increasingly more knowledgeable about their rights, and unfortunately, some may take advantage of their employer. Through investigation, employers can make employee rights and obligations clear to avoid misunderstanding and stay in legal compliance. Perhaps most importantly, conducting a leave investigation creates an employer defense against claims by an employee that the employer violated the FMLA.

Documentation is critical

So why is managing leave so important? Generally, employers should permit some lenience when the question of FMLA abuse surfaces unless the employee’s use of leave is so contrary to the certification that it suggests fraud or other abuse. If suspected FMLA abuse is brought to an employer’s attention, the employer should document how it learned about the potential abuse or misuse of leave. It is important for the employer to follow a decision-making process rather than rushing to judgment on the employee’s actions. An employer’s documentation of its findings throughout the process is critical.

For example, if the FMLA medical certification suggests that an employee may need leave two (2) to three (3) days per month—approximately 24 hours—but the employee tends to use an extra day of leave here and there, it would not be advisable to deny the leave or expect strict adherence to the estimate set by the medical certification.

On the other hand, if the employee’s leave is so far outside the estimate of the medical certification that it suggests a change in the medical condition (or abuse of the medical leave), then the employer may request recertification to ensure that the employee’s actual use of leave is appropriate and in line with the health care provider’s treatment. For example, if the employee’s certification suggests a need for three (3) days of leave per month, but the employee is out every Friday and every following Monday, then this leave pattern could give rise to a request for recertification from the medical provider.

If the healthcare provider confirms that the pattern of leave taken is not consistent with the initial certified medical condition, the employee has failed to provide complete and sufficient certification. Until certification is provided, further requests for leave under the initial FMLA designation may be denied, and any absences may be handled according to the applicable paid time off/sick leave/absenteeism policy.

Meanwhile, because the employee has not provided complete and sufficient certification, the best practice now is to inform the employee of this fact in writing, and specify what additional information is needed to make the certification sufficient, then to give the employee an additional seven (7) days to “cure” that defect. If the employee is unable to do so (likely, since the medical provider agreed that the absences are not consistent with the initial certification), then the approved FMLA leave period ends.

Note that an employer’s policy should be flexible enough to allow for emergencies if an employee truly may not know in advance that leave will be needed. Still, employers may certainly require employees to provide reasonable notice of foreseeable absences and to let the employer know whether that absence is related to the employee’s FMLA-qualifying condition.

Bottom line on termination for FMLA leave abuse

Suppose an employer cannot find evidence of an employee’s abuse of leave on its own; it could call in a professional investigator for investigation of the suspected leave abuse (an employer cannot simply rely on employees/co-workers). In addition, an employer should consult with its local labor law counsel before deciding to terminate an employee for leave abuse. This is a very high-risk and tricky termination situation, and an employer doesn’t want to terminate without first seeking legal advice.