One of the biggest FMLA frustrations for employers is knowing what to do with an employee who appears to be abusing the law’s protections or, even worse, fraudulently using approved leave for non-FMLA purposes.
Although DOL regulations attempt to provide employers with tools to manage and control such behavior, many employers still frequently feel helpless. There is no one foolproof remedy or strategy for handling such issues, but the following are a few techniques employers have found helpful.
What fraud isn’t. First and foremost, just because employees are on FMLA leave doesn’t mean they are rendered immobile, confined to bed at all times.
It also does not mean the employees can never leave a seriously ill family member they have been approved to care for during an FMLA leave. So, for example, seeing employees at the mall while they are on FMLA leave does not mean they are committing FMLA fraud, or even abuse. Even if an employer or co-worker sees an employee working at the mall, he or she may not be committing fraud.
Keep in mind that the “may” here depends in part on whether the employer has a moonlighting policy that prohibits employees from working a second job while on leave.
If the employer does not have such a policy, the mere fact that an employee is found to be working for another employer during leave will not be proof of fraud. The issues around moonlighting are discussed in more detail below.
What fraud is. So what is FMLA fraud, then? It is, quite simply, using FMLA leave in situations that lie outside of the medical or other parameters for which it has been approved. Some examples include:
- Working for another employer doing the same or similar duties that the employee’s medical certification form says he or she is unable to perform.
- Working another job when the employee is supposed to be on leave for a doctor’s appointment.
- Using leave to cover a personal absence that is not related to a serious health condition at all (i.e., going on a hunting trip instead of having surgery).
- Employees who cannot “stand, twist, or bend” at all at work according to their certification form yet can perform quite well on the softball field.
Moonlighting and other activities while on leave. What should an employer do when it gets a tip that an employee on FMLA leave is actually working at another job? When an employer learns that an employee is working for another employer while on FMLA leave, the first steps should be to:
- Let the employee know that the employer knows about the other work,
- Ask the employee for a job description for the other job, and
- Compare that job description with what the employee is restricted from doing according to his or her medical certification form.
If the employer can’t tell from the medical certification form exactly what the employee is prohibited from doing—for instance, if the form simply says “employee cannot work,”— the employer can send a letter, through the employee, to his or her healthcare provider that includes the job description for both the job with you and the other job and asks the provider to recertify that the employee can do the other job but not his or her job with the first employer.
Surveillance. Some employers have hired private investigators to watch and/or record employees suspected of moonlighting while on leave (or other suspected fraud), but what are the consequences of such surveillance? They are not always good. Employees caught in the act have responded with claims of harassment, intimidation, and interference with FMLA rights.
In addition, surveillance photos and tapes are admissible in an FMLA retaliation or interference lawsuit—regardless of whether they are great (or even good) for the employer’s case.
Perhaps more important, juries traditionally dislike the idea of surveillance. They often conclude that the employer was “out to get” the employee and use it as evidence of interference or retaliation.
However, conducting surveillance may be worth the risk provided the employer has sufficient information to question the legitimacy of an employee’s absences.
The first step is to make sure first that the employer has a reasonable basis for its suspicions. For example, if an employee has physical restrictions that can be readily observed (such as the “can’t stand, twist, or bend” softball superstar), surveillance can be effective.
Once the employer has evidence, it may choose to send it to the employee’s healthcare provider with a request to recertify the employee’s need for leave in light of his or her extracurricular activities.
Dealing with subtle FMLA abuse. Rooting out the more subtle types of FMLA abuse takes, first of all, diligence on an employer’s part to track patterns of leave.
Keep an eye out for absences that tend to be concentrated in particular departments or with certain individuals as well as those that occur disproportionately in conjunction with weekends, holidays, or paydays. Because evidence of a pattern of abuse is usually going to be circumstantial rather than medical, the employer must track such evidence over a long enough period so as to demonstrate that the suspicious absences are due to more than mere coincidence.
Another strategy is to send a letter to the employee’s healthcare provider, through the employee, describing the pattern observed and asking whether there is a medical reason for it. If the healthcare provider says “no,” the employer may be able to terminate or otherwise discipline the employee. Even if the provider supports the leave pattern, the employee will often change his or her behavior once the employer has taken notice.
Finally, let’s take a look at some additional methods for reducing FMLA abuse in an organization:
- Training supervisors about how the FMLA and your leave policies work should be the first step. Frontline supervisors are the employer’s eyes and ears, and employers depend on them for information about potential FMLA abuse issues. Providing even 30 minutes of training for supervisors each year is invaluable. At the very least, it will sensitize them to the importance of giving you a heads-up when potential problems arise.
- Once the employer has received a request for leave, the first rule in reducing abuse is to check FMLA eligibility at once. Before assuming an employee is eligible for FMLA leave, take the time to run the eligibility traps.
Sometimes employers find themselves first granting FMLA leave, only to later realize that the employee was not eligible for leave. This includes getting a new certification for every new 12-month period an employee seeks/uses FMLA leave.
- Employers should consistently require certification (and recertification) of the employee’s medical condition. This lets employees know the employer is tracking FMLA absences. Attach the employee’s job description or a list of their essential functions to the certification form so that the healthcare practitioner can accurately assess whether the employee is truly incapacitated from doing his or her specific job.
- Don’t settle for marginal medical certifications. Require employees to provide satisfactory, detailed, and informative certifications as a condition of FMLA leave.
If they don’t do so, the employer should follow up, using all the tools allowed by the regulations, i.e., requiring the employee to correct the certification and following up with the doctor directly, if necessary, and permitted.
However, it is generally considered safer to leave the responsibility of obtaining a satisfactory medical certification with the employee.
- Be diligent in requiring employees to take leave that’s consistent with their medical certification; don’t make exceptions in sympathetic situations.
- Ensure that employees provide enough information to distinguish between planned and unplanned leave.
If they don’t provide adequate notice of planned leave, ask them to explain why. The employer can deny leave if the employees don’t have a good reason.
- Note that although they may be justified in some circumstances, second or third medical opinions are not usually a practical solution. They delay the process and muddy the waters in terms of medical conclusions, not to mention that the employer ultimately bears the cost of those multiple examinations.
- Another important strategy—and one that employers frequently overlook—is to exercise their right to require employees to furnish periodic updates on their status and whether and when they intend to return to work. Stay in communication with them to see how they are progressing. Periodic communication with Human Resources or supervisors makes it more difficult for the employees to abuse their leave.
- Throughout employees’ absences, keep track of their use of FMLA leave and remind them from time to time how much leave they have used and how much they have remaining. Doing so can be particularly valuable when wrestling with intermittent leave.
- Don’t be afraid to seek recertification if the employer learns information raising questions about the stated use of the leave.