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Watching for FMLA leave abuse

Posted January 12, 2018

Emmaline just hung up the phone and found herself staring off into space as she contemplated the situation. Byron, an employee, had just called Pedro, his supervisor, to inform Pedro that he would not be in today, and would need an FMLA day. Pedro had informed Emmaline of the news. That was the fifth such supervisor to inform Emmaline of such a call-in that day, and Emmaline couldn’t help but be suspicious. Adding to her suspicions, was that the Superbowl took place last night, and the local team had won.

Despite employers’ best efforts, some employees will try to find a way to use the FMLA entitlement to job protected leave for reasons that do not qualify for FMLA protections. Some may even go through the process of getting a certification for a dubious medical condition for intermittent leave, so the condition is on record in case they want to take time off in the future.

During certain events, as in our opening story, employers may see an uptick in the amount of FMLA leave taken. Although some employees may have legitimate reasons for leave during such events, too many employees taking leave at such times may justifiably raise suspicions.

You don’t have to be a professional sleuth to catch culprits who are abusing FMLA protections. Actions you can take to help detect such abuse include the following:

  • If an employee takes vacation the same time every year, is turned down, then asks for FMLA leave for that same time period, you may want to be on the lookout to make sure the reason for leave really qualifies. You may also want to be aware of any “events” occurring at that time.
  • Watch for patterns of absence, such as those occurring predominately on Fridays or Mondays (or both), or before and after a holiday. Such patterns could be a sign that an employee is looking to stretch out a weekend or holiday.
  • If an employee has a condition or reason that requires exactly 12 weeks of leave, this may mean that the employee knows just how long the FMLA protections last, and you may want to ensure the reason for leave qualifies; carefully review the certification.
  • If, during a discussion about an employee’s excessive absences, the employee claims that an absence should have been protected by the FMLA, the employee may simply be trying to avoid any discipline that may result from such absences.
  • If you suspect abuse, investigate. Talk to the employee in question. Often, such heightened attention will call the employee’s bluff. If you have exhausted such tools as second opinions, recertifications, and periodic status reports, and still have an honest belief that an employee’s reason for leave does not qualify, you may want to use surveillance. If you do, it may be best to stick to neutral, third-party professionals for this task. They can provide subjective information, and you won’t put company employees in the middle of a “he said/he said” debate.
  • If leave is intermittent, and an employee’s certification indicates that he or she will be absent for two days per month and the employee is absent for six, it’s time for a recertification. The employee may think that the certification provides for an unlimited amount of days off.
  • Listen to what other employees are saying about a coworker who is on leave. There have been cases where coworkers have provided information about employees who were supposed to be out on leave, but the coworker saw the employee doing something contradictory to his or her certified reason for leave. Social media has lent itself to evidence of less-than-honest behavior.
  • Perhaps most effective, train managers and supervisors to be on the lookout for potential abuse. They are on the front lines and are in a position to be exposed to clues.

Most employees won’t be looking to abuse their protections, but every now and then, one may try to. Staying on top of the ones who do will likely send a message to others who may be considering such shenanigans that it may not be worthwhile.

This article was written by Darlene M. Clabault of J.J. Keller & Associates, Inc.

FMLA for Supervisors TrainingJ. J. Keller's FMLA for Supervisors Training gives supervisors and managers critical Family and Medical Leave Act information.


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