Honoring the Family and Medical Leave Act (FMLA) and facilitating employee leave of absence requests are important parts of running a successful workplace. But in rare cases, employees may use their leave entitlements excessively or fraudulently. This may include failing to re-certify their leave or falsifying medical documentation.
If you suspect an employee is abusing FMLA, you might be tempted to take action right away. But it’s important to consider the situation carefully and launch an investigation if necessary. Here are a few potential signs of FMLA abuse, and what employers can do about it while honoring their obligations under federal law.
What Is FMLA Abuse?
FMLA abuse refers to employees who take advantage of their leave entitlements under the Family and Medical Leave Act (FMLA). This can range from employees who request intermittent leave so as to stretch out their leave entitlements to cases of FMLA fraud, in which an employee submits a fraudulent medical certification.
Before assuming that an employee is abusing FMLA leave, it’s important to remember that FMLA regulations cover a wide range of scenarios and the vast majority of leave requests are likely to be legitimate. Some qualifying situations include:
- Caring for an ill or injured family member
- Getting treatment for a serious health condition
- Bonding with a newborn, adopted child, or foster child
- A qualifying exigency related to military service
Eligible employees are entitled to a maximum of 12 weeks of unpaid leave in a calendar year (26 for military caregiver leave). This leave allotment can be applied to more than one qualifying situation and can be used intermittently in some cases.
Employees are only eligible for FMLA if they’ve been employed for at least 12 months in total — and 1,250 hours in the past year — for a government agency, public or private school, or a private employer with at least 50 employees in a 75-mile radius.
3 Reasons to Suspect FMLA Abuse
Identifying FMLA abuse starts with having an effective leave of absence management system and ensuring that your human resources team is up-to-date on FMLA policies. Here are a few things to look out for that could indicate FMLA leave abuse.
1. Insufficient Documentation
If an employee requests FMLA leave due to a medical condition, their employer can ask them to obtain a medical certification from their health care provider to verify their need for leave. According to the U.S. Department of Labor (DOL.gov), they have 15 days to provide this certification, and if the medical condition is ongoing, the employer can request a recertification no more often than every 30 days.
If the medical information they provide is vague or misleading, or if the duration of leave requested exceeds what’s required for medical treatment, this could be a sign of FMLA abuse. In extreme cases, an employee could go so far as to alter the information on their medical certification form or provide falsified documents altogether.
2. Pattern of Absences
Eligible employees aren’t required to use all of their FMLA leave at once, and in some cases, they’ll be entitled to intermittent FMLA leave. This means they can take leave in smaller increments. For example, an employee with migraines may need to call in sick on an occasional basis or take some afternoons off for medical appointments.
Intermittent leave isn’t always a cause for concern, but a pattern of absences over an extended period can be. If an employee frequently requests leave in ways that extend their time off work — such as on Mondays and Fridays, or the days before and after holidays — their use of FMLA leave could be called into question.
3. Employment at a Second Job
Employees are allowed to work while on a leave of absence, so maintaining a second place of employment isn’t automatically a sign of FMLA abuse. If an employee’s health condition prevents them from performing strenuous physical labor, for example, they may still be able to perform light office duties at a second job.
But if their responsibilities at another job are similar to the role they’re on leave from, this could indicate employee abuse of FMLA leave.
5 Ways to Prevent FMLA Abuse
Dealing with FMLA abuse can be a serious challenge for employers. FMLA absences are job-protected, which means employers can’t simply fire employees for suspected abuse. Before jumping to conclusions, follow these five steps to ensure that you’ve done your due diligence and have met your obligations under employment law.
1. Communicate With Employees
First, keep the lines of dialogue open any time an employee requests leave. While it's important to respect employees’ private lives and keep their family or medical situation confidential, it’s reasonable to ask them how long they expect to be on leave and to initiate the return to work process as soon as they’re able to do so.
If something seems off about their FMLA claims, ask about it. Maybe a co-worker saw them posting on social media when they were supposed to be in the hospital. Did they use FMLA to extend their vacation or did they genuinely get sick while overseas?
Many suspected abuse cases can be resolved with clear communication. Office speculation may not tell the whole story.
2. Request Appropriate Documentation
Documentation is key to ensuring a smooth and accurate FMLA claims process. Use a leave of absence management system like Pulpstream to store FMLA forms and allow employees to upload their documentation using a secure online portal.
If the initial certification is vague or confusing, you can request a second opinion or even a third opinion from another medical provider (although you’ll have to pay for it). You can also request a recertification if the employee’s circumstances have changed.
Are you concerned that an employee is abusing their FMLA rights to take time off for an unrelated condition? Institute a call-in policy that requires them to call in with the reason for their absence in order for it to be counted under FMLA.
3. Track Leave Balances
One of the easiest ways to cut down on FMLA abuse is to track FMLA balances using a leave management system. Cases of intermittent leave or a reduced work schedule can be complex. A leave management system makes it easy for your HR team to log every leave request accurately and to identify any unusual absence patterns.
You can also update your leave policy to state that the employee needs to use up their paid leave first. The purpose of this is to prevent employees from extending their leave by using paid leave after their 12 weeks of FMLA leave runs out.
4. Offer a Transfer or Accommodations
A leave of absence isn’t the only option for some family or medical conditions. You may be able to offer the employee a transfer to another position that offers a different set of duties but has the same pay and benefits.
Some employees may also qualify for reasonable accommodation under the Americans with Disabilities Act (ADA). If their medical condition arises from an ongoing disability rather than a short-term illness or injury, consider engaging in the ADA interactive process in addition to or instead of FMLA.
5. Investigate if Necessary
In serious cases of FMLA abuse, you may need to conduct a workplace investigation or even hire a private investigator to observe the employee outside of the office. Evidence that the employee has been skipping medical appointments or otherwise abusing their time on leave can back up your claims if the case ends up in court.
However, it’s important to tread cautiously: Excessive surveillance can be considered an attempt to interfere with an employee’s legitimate use of FMLA rights. Be sure to seek out legal counsel before terminating an employee for suspected FMLA abuse.
Facilitate Leave Requests With Pulpstream
FMLA abuse occurs when an employee violates the Family and Medical Leave Act by extending leave inappropriately or falsifying medical documents. Employers should be on the lookout for vague medical documents and patterns of unusual absences, while being careful not to infringe on employees’ attempts to exercise their FMLA rights.
A streamlined leave management platform like Pulpstream can benefit employers and employees alike by facilitating leave of absence requests. Employees can upload their medical documentation securely while employers can track leave balances, monitor leave of absence trends, and ensure compliance with federal employment law.
Request a demo today to see how Pulpstream can help!
