FMLA leave provides enough regulations for HR to contend with—no one wants to add a fraud investigation into the mix. However, it’s an unfortunate reality that some employees try to abuse the system, especially when it comes to intermittent leave. What can an employer do when fraud is suspected?
What Constitutes FMLA Fraud
“What constitutes FMLA fraud? FMLA fraud – the kind of action or conduct which permits an employer to terminate an individual’s employment or discipline him – it has to rise to the level of intentional deception or intentional untruthfulness. It can’t be just sloppiness . . . it’s got to be, and we have to prove, that the employee was intentionally deceptive or intentionally untruthful with us about their FMLA leave (including intermittent leave).” Charlie Plumb advised in a recent BLR webinar.
FMLA leave fraud typically falls into two categories:
- Using FMLA leave for non-FMLA purposes. This typically involves taking the day off for reasons that have nothing to do with their medical condition, yet using FMLA instead of a standard absence.
- Misrepresentation of the FMLA medical condition. This includes alteration of medical documentation. It’s difficult to discern if someone is being truthful with their doctor, but he or she can also misrepresent themselves by altering their documentation before giving it to the employer.
Addressing Suspected FMLA Fraud
When administering FMLA leave, if HR has genuine suspicion of fraud on the employee’s part, the employer is entitled to investigate. Some sources of suspicion might be:
- A supervisor’s observations.
- Information from a coworker.
- Third-party tips.
- Absences that coincide with non-work events (i.e., sporting events, concerts)
- Absences which are different from the medical certification indications in terms of the frequency or duration.
When HR suspects FMLA leave is being taken fraudulently, there are many actions that can be taken. Here are some tips on investigating FMLA absences when fraud is suspected:
- “Be able to show your suspicion was reasonable.” Plumb advised. “Be able to explain how you first became suspicious.”
- Use a qualified professional for any surveillance. This helps to remove bias and increase objectivity.
- When questioning absence patterns, look over a long time period and compare with other employees. If the medical certification is unclear on whether these absences would be aligned with the employee’s condition, the employer can send the absence pattern to the medical provider and ask for confirmation of whether the absence pattern is aligned.
- Review the medical certification to ensure the details are understood and the document looks genuine. If there are questions, you can send the medical certification to the healthcare provider and see if it is consistent with what they provided (in the case of suspected documentation fraud).
- Talk to the employee. Explain what you have discovered and give them an opportunity to explain.
For more information on how HR can manage FMLA leave and combat suspected fraud, order the webinar recording of “HR’s Guide to Leave Management: How to Avoid Legal Headaches When Coordinating FMLA Leave.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Charlie Plumb represents management in all phases of employment law and labor relations and also serves as leader of McAfee & Taft’s Labor & Employment Group.