Suspect FMLA abuse? Investigate

Put on your best Sherlock Holmes

Posted August 23, 2018

Combating employee abuse of leave under the Family and Medical Leave Act (FMLA) has long been one of the many tasks HR professionals wish they could simply get off their plate. Part of the issue is that while employees may not be well versed in the reasons that qualify for FMLA protections, they often will go to some great lengths to get some time off work for many reasons (qualifying or not). Some employers might even argue that employees see the FMLA way as a nice bank of vacation.

While some situations might seem like the abuse is obvious, and the employer had every right to take a negative employment action based on the abuse (the regulations do point out that an employee who fraudulently obtains FMLA leave is not protected), employers will fare better if they avoid a knee-jerk reaction to a situation and do at least a bit of investigating. If watching a video post of an employee dancing the night away at a concert when he is supposed to be on FMLA leave because of a back injury might make you want to start termination proceedings, stop, take a breath, and read on.

There are always two sides (at least) to every story. Employers who give employees an opportunity to explain their actions (such as the dancing employee) can be viewed more positively in the eyes of a court, and can actually make them look better in the eyes of the employee. Consider this: If, as a child, you got caught with a book of matches, and your parent did not immediately ground you for a week, but instead asked you why you had the matches, your view of that parent could be very different, and your view of your actions could also be very different. You might more easily see the error of your ways when you tried to explain.

The same holds true for employers. Those that conduct investigations instead of immediately applying discipline fare better in the courts. Perhaps your dancing employee could actually dance without risking further injury to his particular condition. Since you are not a medical doctor, how could you be aware of all such relative facts enough to judge?

Take, for example, the case where an employee cared for her terminally ill mother. The mother won a trip to Vegas as a result of her condition (think Make-a-Wish), and the daughter/employee went with her. Even though the employee helped with a pump and other medical interventions for her mother, the mother did not receive treatment from a health care provider while on the trip. The two spent time doing what other people were doing in Vegas — relaxing, gambling, dining out, etc. The employee was fired for FMLA abuse, but won the ensuing lawsuit.

The employer in this case did not do any investigating, but decided that the “vacation” did not qualify for FMLA protections. The employee, however, was providing the same care for her mother as she did when they were home; the care was simply being provided in an alternative location.

In some situations, the investigation need not be overly exhaustive, particularly if the abuse is blatant. Simply giving the employee the opportunity to explain might be enough. You won’t know, however, unless you avoid a rash reaction, and allow for more information to come forth.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.


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