No employer wants to find out that an employee lied about a serious health condition or family emergency so they could take extended time off to go on vacation or work a second job. But prying too closely into an employee’s personal life can run afoul of confidentiality requirements under the Family and Medical Leave Act (FMLA).
How often does FMLA fraud really happen, and what are the signs of FMLA abuse that you should be looking out for? By tracking FMLA leave accurately, you can honor your legal obligations while reserving the use of FMLA leave for its intended purpose.
Here’s how human resources teams can use an AI-assisted leave management system to identify suspicious patterns of absences that could indicate potential FMLA abuse.
FMLA fraud is when an employee lies about or takes advantage of their rights under the Family and Medical Leave Act (FMLA). FMLA regulations provide eligible employees up to 12 weeks of job-protected leave for certain qualifying reasons, such as:
The line between FMLA abuse and FMLA fraud can be hard to determine. FMLA abuse might include misrepresenting the nature of an absence to take more leave, while FMLA fraud involves falsifying medical documents or making dishonest claims.
It’s important to distinguish between different forms of FMLA abuse to take appropriate action and avoid FMLA retaliation claims. Some cases may be an employee’s genuine misunderstanding of their FMLA rights, while others are intentional FMLA fraud.
The most common signs of FMLA fraud and abuse are clear inconsistencies between an employee’s claims and their behavior. When an employee makes a leave request, look out for these signs before and during their FMLA absence:
The U.S. Department of Labor (DOL) provides FMLA certification forms to use when an employee takes leave for family or medical reasons. These forms make it easy for their healthcare provider to verify the reason for the employee’s leave.
But what if an employee’s stated reason for leave doesn’t match their documentation? Maybe they’ve requested more leave than their condition requires, or they’ve failed to provide a medical certification within 15 days, as required by FMLA.
If you’re only on the lookout for obvious cases of FMLA fraud, like forged documents, you may miss more subtle discrepancies in their paperwork.
An employee’s need to take leave can be genuinely unpredictable. They may have a chronic condition that requires them to take intermittent leave for flare-ups or ongoing treatment. They may be on reduced schedule leave to bond with a newborn child.
But when their pattern of absences doesn’t align with their medical condition or family situation, it’s worth a closer look. Are they mostly taking leave around weekends and holidays, or showing up late even when they don’t have doctor’s appointments?
What started as a genuine need to take leave could be masking chronic absenteeism. Use an attendance tracker to spot suspicious patterns and identify red flags before they spiral into outright cases of FMLA fraud.
Another common sign of FMLA fraud is when an employee’s behavior inside or outside of work doesn’t align with their leave request. Posting pictures of a vacation on social media when they’re supposed to be recovering from surgery is just one example.
Sometimes, an employee might work at a second job while on FMLA leave. This isn’t always an issue — FMLA leave is unpaid, after all — but if the jobs are too similar in nature, it could call their reason for taking leave into question.
FMLA abuse is a serious matter, but suspicion alone isn’t enough to take action against an employee. Firing an employee while on FMLA leave could be seen as retaliation, so follow these steps to address FMLA fraud while respecting employees’ rights:
Thorough record-keeping is the best defense against FMLA fraud. You should request a new medical certification for each instance of leave, and recertification every 30 days if an employee extends their leave of absence for the same qualifying reason.
You can also request a second opinion from a different healthcare provider if you have concerns about the records the employee provided.
If the employee isn’t forthcoming with documentation and you suspect they’re willfully misleading you, you may need to conduct an internal investigation. Start by reviewing attendance records and internal communications for discrepancies, and if necessary, interview other employees to find out if they can substantiate your suspicions.
In extreme cases, you can hire a private investigator to determine whether an employee is on vacation, working a second job, or misrepresenting their condition.
As soon as you suspect FMLA fraud, seek legal counsel to ensure that you comply with your legal obligations. Certain actions are off-limits, such as contacting an employee’s healthcare provider directly or using surveillance as a form of intimidation.
In some cases, an employee who doesn’t qualify for FMLA leave might qualify for reasonable accommodation under the Americans with Disabilities Act (ADA).
Seeking legal counsel can help you understand your options and protect you from accusations of retaliation or wrongful termination.
When you have clear evidence of FMLA abuse, take disciplinary action in line with your company policies. If your company policy prohibits supplemental employment, remind your employee that this policy stands even while they’re on FMLA leave.
Or, provide a written warning that unsubstantiated FMLA leave will be treated as an unapproved absence. In cases where FMLA fraud is serious and ongoing, you may need to progress directly to termination and/or take legal action.
FMLA fraud can be hard to spot, but modern leave management systems make the job easier. The right LMS can automatically assess each leave request for FMLA eligibility, generate the appropriate documents, and send email and SMS reminders when an employee needs to certify or recertify their medical condition.
While your HR team should decide whether to take action, a cloud-based LMS like Pulpstream gives you a head start in gathering evidence and documenting your investigation. Track intermittent leave and workplace accommodations all in one place, with a 360-degree view of each case and automated multi-state compliance.
Leave abuse can occur when an employee misrepresents their reason for taking time off or fails to document it appropriately. Common signs of FMLA abuse include excessive absences and behavior that conflicts with an employee’s stated medical condition.
HR teams should be on the lookout for FMLA fraud while taking steps to avoid false accusations and the appearance of FMLA retaliation.
Pulpstream’s leave of absence management tools use artificial intelligence to monitor attendance patterns, flag inconsistencies, and identify missing paperwork. Combining AI-powered analytics with human oversight helps respect employees’ rights while ensuring that FMLA leave is used only for its intended purpose.
Request a demo today to see how Pulpstream can help!