Every year the Family and Medical Leave Act (FMLA) helps employees across the nation manage serious health issues and care for ill family members. With this comes a major frustration for employers—the suspected abuse or direct appearance of an employee using this leave inappropriately under FMLA. In fact, suspected employee abuse is the number one FMLA-related concern for employers, with a majority believing they have granted unfounded leave to an employee in the past.
Though many have encountered possible FMLA fraud, employers rightfully tend to be wary when confronting suspected abuse—employees who successfully sue for wrongful termination often receive hundreds of thousands of dollars in damages. Abusing the federally protected right to work leave is an issue that many employers are faced with, but there are ways to detect possible FMLA abuse and steps to curb and even prevent fraud.
Signs Indicating Possible Abuse
- Frequent leave requests immediately preceding or following a weekend
- FMLA leave requests after denial of vacation on the same or similar days
- Numerous sudden or abrupt leave requests
- Complaints from other employees that an individual is abusing leave
- Sightings of an employee on leave engaged in strenuous activities, or activities indicating the employee is capable of performing normal job responsibilities
- Repeated injuries/re-injuries shortly after returning from leave
Tips to Prevent Abuse
- Require employees to use all paid leave before taking unpaid FMLA. Employees are less likely to abuse FMLA if they have to use up vacation time before doing so.
- Obtain medical certification directly from the doctor. The 7th Circuit Court has held that an employer does not interfere with FMLA rights by requiring that the completed certification form be faxed or mailed directly by the doctor.
- Require medical certifications within 15 days of taking leave. Employers that are specific about the documentation needed to take FMLA leave as well as the penalties for not complying have a much easier time taking action if the employee fails to do so.
- Have employees provide notice for expected FMLA leave. Requiring advance notice gives the employer the time to plan around future absences, minimizing abuse.
- Establish attendance and call-in policies for all leave. Consistent enforcement of leave policies, including FMLA, can be designed to prevent fraud.
- Utilize private investigators if necessary. Courts have been reluctant to rule against an employer for terminating an employee who is caught directly engaging in fraud.
- Obtain “fitness for duty” certifications for employees when they return from FMLA leave. However, this cannot be required of an employee if returning from intermittent FMLA leave.
- Establish a policy prohibiting an employee from working a second job while on FMLA leave. Note that the 6th Circuit Court in 2003 ruled that there may be instances when an employee can lawfully take FMLA leave from an employer and still work a second job, and some state FMLA laws may also allow this practice.
Ways to Obtain Additional Medical Information if Fraud Is Suspected
- Employers can directly contact employees’ health care providers without the employees’ permission to make certain that the health care provider is the person who actually signed the certification form.
- Clarifications regarding certification forms can be acquired from the health care provider, but only within the confines of the privacy rules of the Health Insurance Portability and Accountability Act (HIPAA).
- An employer may request the opinion of a second or third health care provider designated or approved by the employer, but not employed regularly by them. This will be at the employer’s own expense.
- An employer is not required to obtain additional opinions and may deny the FMLA leave without a second or third opinion when the employer has credible reason to doubt the validity of the certification.
- An employer may request a recertification of the medical condition associated with the employee’s absence every six months. If the employer has reason to doubt the employee’s stated reason for leave, it may request recertification in 30 days or even less.
In order to minimize FMLA fraud in the workplace, measures can be taken by the employer without violating an employee’s FMLA rights. By detecting possible signs of abuse, using tips to prevent abuse and obtaining additional medical information when fraud is suspected, you take effective steps as an employer toward eliminating FMLA abuse at your workplace.
The Department of Labor (DOL) maintains several websites dedicated to providing information regarding the FMLA. General FMLA information can be found at www.dol.gov/whd/fmla/index.htm. The DOL website dedicated to the discussion of the updated regulations and sample forms can be found at www.dol.gov/whd/fmla/finalrule.htm.
AUI offers products to help you manage your company’s FMLA issues. If you need more information about how AUI can help you, please contact us!