FMLA Abuse: What It Is and How To Detect and Prevent It
FMLA abuse is a breach of ethics that diminishes trust within an organization. It’s a vital issue because employees in high-trust environments are 260% more motivated and 50% less likely to pursue other employment. How can you identify and prevent it in your company?
FMLA (Family and Medical Leave Act) abuse disrupts the workplace and undermines trust in and among employees. Minimizing FMLA abuse is crucial — with over 56% of U.S. employees covered by the law, it’s important to have strategies in place to address potential misuse and maintain a fair work environment for everyone.
While there’s no definitive data on the prevalence of FMLA abuse, employers have filed lawsuits against employees accused of it. As an HR professional, awareness of FMLA abuse is crucial. This article covers what FMLA abuse looks like and how you can deal with it.
Contents
What is FMLA abuse?
Common types of FMLA abuse
FMLA violations: 5 red flags to look out for
Examples of FMLA abuse
How to identify and prevent FMLA abuse
Handling FMLA abuse
FAQ
What is FMLA abuse?
The Family and Medical Leave Act (FMLA) is a U.S. law that applies to all public and private employers with over 50 employees. It requires these employers to provide eligible staff members with up to 12 weeks of unpaid leave for medical reasons.
FMLA abuse occurs when employees take leave under the Family and Medical Leave Act outside its intended purpose. Examples of FMLA violations include using it for non-medical situations or using more leave than is justified.
The FMLA was designed to protect employees from termination of employment contract if they needed time off to seek medical treatment, tend to a newborn or adopted/foster child, or care for a sick or injured family member. Regrettably, some employees exploit it to get more time off work than they’re entitled to.
The ramifications of FMLA abuse include:
- Unnecessary workflow disruption that affects productivity
- Needless administrative tasks for HR
- Unfair burden on employees who must pick up the slack
- Resentment among employees who discover their coworkers receiving unwarranted time off.
FMLA abuse vs. FMLA fraud
FMLA abuse becomes FMLA fraud when it involves scams or forgery to obtain FMLA leave. For example, an employee who falsifies medical documentation to claim or exaggerate a health condition is committing FMLA fraud.
An employee who does this loses their entitlement to being reinstated at work and may also have their employment terminated.
Common types of FMLA abuse
It’s important to be aware of the various ways dishonest employees can take improper advantage of their FMLA rights. The most common types of FMLA abuse are:
- Misrepresentation of medical conditions: This is when an employee feigns a health problem or exaggerates a minor ailment. They may seek medical attention and fake or lie about their symptoms to obtain FMLA leave. Others may misrepresent a family member’s state of wellness and request FMLA leave to care for them.
- Misuse of intermittent leave: The FMLA allows employees to take leave periodically in short blocks for their qualifying health conditions. This allows them to miss work for medical appointments or when their symptoms flare up. However, it also makes it easy to avoid undesirable work, call in sick for a hangover, or leave work early for a social event. Exploiting intermittent leave may be the most prevalent form of FMLA abuse and also the most difficult to prove.
- Misuse of leave for other activities: Employees must use FMLA authorization only for approved medical reasons. However, just as some employees misuse intermittent FMLA leave, they can also abuse ongoing FMLA leave. An example is when an employee spends their FMLA leave working another job.
- Fraudulent certifications: Some employees go so far as to doctor or even falsify medical authorization forms to extend their FMLA leave past their medical care provider’s recommendation. Submitting counterfeit or altered documents to request FMLA is what turns FMLA abuse into FMLA fraud.
FMLA violations: 5 red flags to look out for
While it can be difficult to detect FMLA violations, you can watch out for certain patterns of behavior that potentially signal FMLA abuse. Red flags to watch out for include:
Red flag 1: Regular absences coinciding with holidays or weekends
An employee consistently requesting FMLA leave that coincidentally extends their weekends or holidays can indicate that they’re using this leave for their own convenience rather than out of medical necessity. This has led to people sarcastically calling FMLA the “Friday Monday Leave Act”.
Red flag 2: Insufficient documentation or questionable doctors’ notes
An employee’s failure to submit relevant medical documentation when applying for FMLA leave could signal dishonesty on their part. The same applies if their doctor’s notes or medical certifications are vague or come from incompatible sources.
Red flag 3: Engaging in activities that contradict medical claims
An employee may claim to have a medical condition that renders them unfit for work but may then engage in activities that show they’re not actually ill. HR often becomes aware of these situations when another employee is an eyewitness or sees evidence on social media and reports the incident.
Red flag 4: Sudden leave requests after disciplinary action
Some employees engage in FMLA abuse to avoid a reprimand after receiving a formal or an informal warning. FMLA leave may offer a convenient escape from uncomfortable situations or further disciplinary action at work. It can also buy employees time until the situation blows over or allow them to pursue another job or even legal action against the employer.
Red flag 5: Extended absence beyond approved leave days
An employer may extend an employee’s FMLA leave for valid reasons, such as if they need longer than expected to recover from an infectious illness. However, if the employee doesn’t provide relevant medical documentation to justify the extension, they may be violating the FMLA.
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Examples of FMLA abuse
Dealing with FMLA abuse is complex and requires strict vigilance. Here are two legal case summaries of FMLA abuse examples to demonstrate what you may need to do to handle this issue at your organization:
Vail vs. Raybestos Products Company
Diana Vail worked the 10:45 p.m. to 6:45 a.m. shift for Raybestos Products Company. As she suffered from debilitating migraines, the company granted her intermittent FMLA leave in April 2004.
Her supervisors started becoming skeptical as she began requesting more and more intermittent leave. Since they knew she’d occasionally pitch in at her husband’s lawn-mowing business, Raybestos’ management decided to hire an off-duty policeman to monitor her during her leave.
The day after Vail’s doctor prescribed her a new migraine medication and instructed her not to work for 24 hours, the policeman observed her mowing the lawn at a local cemetery. That afternoon, she requested FMLA leave from her evening shift at Raybestos because of a migraine.
Her lawn-mowing activity led Raybestos’ HR to suspect she’d been abusing her intermittent FMLA leave. Additionally, being gainfully employed elsewhere while on leave was a violation of her union’s collective bargaining agreement.
Raybestos’ HR director called the union to inform them she planned to fire Vail, and the union did not dispute her decision. Vail signed her termination notice but later filed an unsuccessful lawsuit against Raybestos for violating the FMLA and breaching the collective bargaining agreement.
Key takeaways
- Remind supervisors to be vigilant and provide any evidence of FMLA abuse
- Factor in collective bargaining agreements when investigating FMLA abuse
- When trying to prove intermittent FMLA abuse, you may need to invest in external surveillance.
Juday vs. FCA US LLC
Married couple Michael and Becky Juday worked for auto manufacturer FCA at its Kokomo, Indiana plant. In 2017, they both submitted medical certifications to authorize intermittent FMLA leave for periodic flare-ups of anxiety and depression. It also covered Michael’s back pain and Becky’s irritable bowel syndrome.
At the end of that year, FCA’s FMLA administrator reported that the Judays had 21 common days of FMLA absence and 27 common partial-day absences. FCA then decided to open an FMLA abuse investigation.
When neither Michael nor Becky could explain their multiple overlapping requests, FCA suspended both of them for submitting false or misleading FMLA information. Michael sued FCA for violating his FMLA, but the district court granted FCA summary judgment, and the circuit court upheld this ruling.
Key takeaways
- Look for patterns in intermittent FMLA leave requests that may reveal potential abuse
- Remind the employer that they may not have to conclusively prove FMLA abuse; they simply have to sufficiently demonstrate that logical suspicion of abuse is warranted.
How to identify and prevent FMLA abuse
Understanding FMLA regulations, maintaining compliance, and implementing an organization’s FMLA policy can be demanding. Respondents to a Littler employer survey stated managing FMLA leave as their greatest challenge in providing employees with reasonable accommodation.
Identifying, handling, and preventing FMLA abuse requires a structured approach. The following steps provide an overview of how you can go about this process:
Identification
There are a few ways to identify FMLA abuse, ranging from identifying patterns of absences among the workforce to engaging external parties in your investigation. To effectively identify FMLA violations, you can:
A. Monitor patterns and trends
- Track absences: HR software can simplify FMLA leave management. Use detailed records of all FMLA leave requests and absences to monitor individual leave days and see if you can identify any patterns that indicate potential misuse.
- Review documentation: Examine the documentation employees submit to ensure they’ve completed all relevant forms correctly and that they comply with FMLA requirements. Employees may make unintentional errors now and then, but consistently incomplete or inaccurate documentation is common in FMLA abuse.
HR tip
Remember that not all patterns are sure signs of FMLA abuse. For example, an employee who has weekly medical appointments scheduled in advance may legitimately not feel well enough to work the following day.
B. Verify medical certifications
- Authenticate documents: Look closely at medical certifications to confirm their authenticity. If necessary, validate their legitimacy by researching the healthcare provider or contacting them for verification.
- Assess consistency: Look for alignment between the medical documentation and the employee’s leave duration and absence patterns. This will help you identify any gaps or unexplained variations.
C. Conduct spot checks
- Observe employee activities: Lawfully observe whether an employee on FMLA leave is participating in activities that contradict their asserted medical condition. You can do this by looking at their social media posts or hiring a private investigator to conduct surveillance in case you have a reasonable suspicion of abuse.
- Use third-party reports: Supervisors and coworkers can be valuable sources of information. Gather and assess their input if there are concerns about how an employee uses their FMLA leave.
HR tip
You need solid, objective evidence or at least, strong reasons to justify surveillance of an employee during their FMLA leave. Otherwise, an employer can appear to be singling out an employee due to bias and interfering with their right to take FMLA leave.
Prevention
Preventing FMLA abuse is just as important as identifying it. To do so effectively, you can:
A. Educate employees
- Implement clear policies: Provide a comprehensive explanation of FMLA policies to ensure employees fully understand their rights and responsibilities, as well as the penalties for breaking the rules. Internal FMLA policies should be straightforward and include streamlined instructions on applying for, documenting, and reporting any leave of absence.
- Train employees: Offer training on recognizing and reporting potential FMLA abuse. Educate and empower managers to ask employees informative yet appropriate questions about their leave circumstances.
B. Implement robust documentation practices
- Standardize forms: Establish well-defined procedures and standardized formats for requesting and documenting FMLA leave. This minimizes errors and ensures the same criteria for all employees.
- Maintain records: Keep accurate, uniform records of all FMLA leave requests, approvals, and communications to maintain process consistency and compliance. These will also serve as evidence in FMLA abuse investigations.
C. Use technology
- Invest in suitable HR software: Capitalize on HR management systems that can collate certifications, track and analyze leave patterns, and detect potential red flags.
- Set up automated alerts: Set up customized alerts that notify you when unusual leave patterns or high-frequency absences occur.
Handling FMLA abuse
Knowing how to handle FMLA abuse properly when you’ve discovered it is crucial. Here are some steps you should take to ensure you deal with it appropriately and professionally:
Investigate concerns
- Conduct fair investigations: If an employee’s FMLA leave appears questionable, conduct a thorough and fair investigation. Gather and carefully review all relevant evidence and documentation. Then, interview the employee to hear their side of the story before you take any further steps.
- Maintain confidentiality: Take conscientious measures to protect the employee’s privacy throughout the investigation, as FMLA leave involves personal and sensitive information.
Take appropriate action
- Follow procedures: Abide by all FMLA regulations and disciplinary procedures when addressing confirmed abuse. Strict adherence shows an employer has acted in good faith, which will protect them against claims of discrimination and retaliation.
- Document actions: Keep detailed records of all actions you take in response to FMLA abuse. This includes meetings, investigations, and disciplinary measures. Certain employment policies, such as those regarding time off and social media, can also serve as supporting documentation for employee misconduct.
Review and adjust policies
- Policy updates: Regularly review FMLA policies and procedures, and update them accordingly as soon as there are changes in the legal requirements.
- Establish a feedback loop: Get input from managers and employees on FMLA processes to help identify areas for improvement and new ways to prevent future abuse.
To sum up
If not monitored, employees may exploit FMLA provisions, creating problems in the workplace for their colleagues, managers, HR, and the organization as a whole. Additionally, FMLA abuse can happen in any company and play out in a variety of ways.
As part of the HR team, you must be vigilant of how employees use their FMLA leave so you can handle suspected and confirmed abuse promptly. This means having clear FMLA policies and proper investigation procedures to back up any decision to discipline an employee.
FAQ
You can deal with intermittent FMLA abuse by having stringent call-in policies, tracking and scrutinizing all absences for suspicious patterns, and requesting periodic recertification of any medical conditions employees claim to have.
Warning signs of FMLA abuse include insufficient documentation and medical certification, repeated leave extensions, participation in activities that contradict medical claims, and leave coinciding with unpleasant work situations, weekends, or holidays.
FMLA retaliation is when an employer takes unfavorable action against an employee who has used FMLA leave. Examples include increased scrutiny by a supervisor, reassignment of duties, demotion, or even termination.
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