One of the biggest frustrations for employers is trying to deal with an employee who appears to abusing FMLA leave, says Schoenfeld.
Fortunately, there are a number of strategies you can use to control FMLA abuse and fraud in your organization as a whole.
Fraud, actually, tends to be a more manageable problem than simple abuse, Schoenfeld says. For example, employers tend to have better luck sniffing out an employee who takes a week of FMLA leave to go an a hunting trip (fraud) than proving that one is using an already certified medical condition as an excuse to sleep in on Monday mornings (abuse).
However, you can’t demand that an employee out on FMLA stay in the house. Just because an employees are on FMLA leave for their own health condition doesn't mean they must be bedridden. It also doesn't mean the employee can never leave the side of the person he or she is taking care of.
So the fact that you see an on-leave employee at the grocery store doesn’t necessarily mean fraud or abuse.
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So what is FMLA fraud, then? It is, quite simply, using FMLA for reasons other than those for which it has been approved. Some examples include:
Rooting out the more subtle types of FMLA abuse takes diligence on your part to track patterns of leave.
Employers need to keep an eye out for absences that tend to be concentrated in particular departments or with certain individuals, as well as those that occur disproportionately in conjunction with weekends, holidays, or paydays.
Because evidence of a pattern of abuse is usually going to be circumstantial rather than medical, you need to track such evidence over a long enough period so as to demonstrate that the suspicious absences are due to more than mere coincidence.
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One expert suggests that you show actual calendar pages marked with big Xs to the health care provider and ask, Is this a pattern of absences you would expect to see with this particular serious health condition? When the health care provider sees graphically every Monday and Friday absent, you’ll usually get a “No, that’s not an expected pattern.”
In tomorrow’s Advisor, strategies for reducing FMLA abuse, plus an introduction to the guide some call “The FMLA Bible.”
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