The Family Medical and Leave Act (FMLA) gives employees the right to take unpaid time off when they have a serious health problem or need to take care of a family member. Most workers will use this program appropriately — but wherever there’s a benefit, there will be some bad apples looking to take advantage, and FMLA fraud can be a costly problem for employers. Here’s how you can identify and prevent this type of abuse in the workplace.
The FMLA applies to employers with 50 or more employees. It says that employees can take up to 12 weeks off in a 12-month period if they have a qualifying reason. This law trumps workplace attendance policies, including any policy you may have requiring that employees have a supervisor approve the leave. As long as an employee qualifies under the FMLA, they can go on leave without risking their job.
Since the FMLA gives employees the ability to take time off, someone committing fraud may pretend to have a legitimate FMLA reason but then go on vacation, work a second job or skip simply because they don’t feel like attending.
What FMLA Abuse Costs Employers
When employees miss work through FMLA abuse, they become a serious financial drain on your business. To start, you’ve got someone on staff who’s not giving it their all. Even though the FMLA leave is unpaid, you’ve still got a role that’s not being done properly, which will lower the overall productivity of the company.
As a result, the rest of your staff may need to work harder to cover the missing employee’s responsibilities. They’ll be more stressed, increasing the chance that they could get sick or quit because of burnout. Additionally, if your employees see a coworker lying and ducking out for unacceptable reasons, they could become frustrated — if enough people feel this way, morale will take a hit. This kind of abuse isn’t fair to employees who follow your leave protocols responsibly. When they take time off, other employees may suspect they’re cheating as well.
Signs of Possible Fraud
If you are concerned that an employee may be committing FMLA fraud, keep an eye out for these warning signs:
- After being denied vacation or a personal day, an employee requests FMLA leave for the same period.
- Their leave requests are suspiciously timed, such as if they regularly take off Fridays and Mondays or pick dates right before or after a major holiday.
- An employee is unhappy. If an employee is frustrated with their work or suspects that they are already at risk of termination, they may go on leave, possibly to start their job search.
- You receive tips or complaints from coworkers that an employee is not using FMLA leave properly.
- You go on social media and see photos that contradict the employee’s FMLA claim. An employee probably shouldn’t be bragging about going out dancing while taking leave for a back injury, for instance.
Steps to Prevent FMLA Fraud and Abuse
It’s no fun having to play detective and investigate your employees, but it’s better than accepting the financial and emotional burden of fraud on your organization. Here are some safeguards to establish to prevent FMLA misuse:
- Ask for written leave requests. Under the FMLA, you can ask employees to submit written leave requests to your HR decision-maker. Creating this paper trail could make employees think twice about submitting a fake excuse.
- Request certification for extended leave. When an employee requests leave spanning multiple days or weeks, ask them for certification from their medical provider justifying the absence. You can also request that they recertify if you notice suspicious behavior, such as if the doctor estimated a leave of two days per month but the employee is taking more frequent leave.
- Check if the employee can still perform their job. If an employee’s role includes physical tasks and you’re concerned about whether they can still handle them after an injury or illness, you can also ask for a fitness-for-duty certification from their medical provider. This involves sending the provider a list of the employee’s responsibilities and letting them determine whether the employee is healthy enough to do their job.
- Get a second opinion. If you don’t trust the provider’s response, you have the right to request a second opinion. You can choose the medical provider, but it can’t be someone who your business employs on a regular basis.
- Interview employees about suspicious absences. When you see signs of potential FMLA abuse, you may choose to bring the employee in for an interview. Ask them to explain conflicting information and give you details on their whereabouts on days you suspect abuse. This may deter them from doing it again and helps you build your case in the event of actual fraud. Before conducting the interview, reach out to your legal counsel to see what you can and can’t ask, especially regarding private medical information.
Employer Legal Rights and Liability
If you suspect that an employee is committing FMLA fraud, you are allowed to fire them. However, tread carefully — you want to make sure you fire them legally. If you don’t have a proper case, the employee could sue you for interfering with their FMLA rights.
If you still think there’s a problem after taking steps to prevent abuse, reach out to your legal counsel and show them your evidence of possible fraud, such as testimonials from other employees, odd timing of the leave or suspicious social media posts. They may recommend that you hire a private investigator to further build your case, such as by collecting photos showing that the employee was at a resort rather than home sick. Collecting all this evidence now helps you avoid legal retaliation after you’ve fired the employee.
All this being said, keep in mind that FMLA fraud and abuse is rare. Less than 2% of work sites reported misuse of the FMLA. Most employees requesting leave do so for good reasons. But by taking these precautions, you can make sure to identify those workers who try to abuse this program.
Stay up to date on the latest health care regulations and trends for your small business: Subscribe to our monthly newsletter.