FMLA FRAUD: AN EMPLOYER CONCERN

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 more than 60 percent believing they have granted unfounded leave to employees in the past.

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
• Very sudden or abrupt leave requests
• Increase in the number of 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 his/her job
• Repeated injuries/re-injuries shortly after returning from leave
  

Tips to Prevent and Head Off 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 Seventh Circuit Court has held that an employer does not interfere with FMLA rights by requiring that the completed certification form be faxed
• 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. 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 when he/she 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 Sixth 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
• 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