FMLA abuse is one of the biggest concerns for employers when complying with FMLA leave regulations. One example of potential FMLA abuse is questionable leave use. This is when someone is out on leave and they are doing something that seems inconsistent with the leave. For example, what happens when an employee is found to be working on another job while out on leave? What if they post photos of themselves on social media participating in celebrations or other activities that don’t seem to be in alignment with their FMLA leave?
The first piece of advice is: don’t jump to conclusions too quickly.
“Your initial reaction is to take disciplinary action [or] to deny the leave. Don’t do that.” Michael E. Barnsback advised in a recent BLR webinar. “Don’t assume that the employee is engaged in fraud or his behavior is inconsistent. You need to investigate the occurrence. Make sure that you conduct a thorough investigation to the best of your abilities. But, in conducting the investigation, don’t interfere with the employee’s leave rights.”
Investigating Potential FMLA Abuse
The key here is that FMLA leave is a protected right, and employees taking it have the right to take it without interference. Employers have the right to investigate potential fraud, but shouldn’t take negative or otherwise retaliatory actions until the investigation has completed. For the portion of the investigation that requires speaking with or interviewing the employee, wait until they have returned from leave. The employer must take care to ensure that no action is taken that could be construed to be interfering with the employee’s FMLA rights.
The best piece of advice here is to do all that you can in the investigation without involving the employee while they’re on leave. Gather everything while they’re out, but don’t interrupt them.
For some subtle patterns of abuse, internet research may be effective. For example: perhaps the employee announces on his Facebook page that he won a fishing tournament while on FMLA leave. This information could be researched online. But be careful: Social media presents an easy avenue to interrupt the employee while on leave, Barnsback says.
“When you’re dealing with social media, be very careful. Be a lurker and not a participant . . . look and see what’s on Facebook, but don’t engage in a communication with the employee. Don’t post anything on Facebook. Don’t ask the employee to contact you. Make sure you just observe and don’t participate. By participating, 1) you may say something improper [and] 2) you may be found guilty of interfering with their leave. So, when you look and use the internet as a research tool, make sure that you’re not engaging the employee.” Barnsback advised.
Any type of surveillance is tricky and will often backfire if no evidence of abuse is found. A jury may think you “had it in” for the employee. It may imply an intention to retaliate. Proceed with caution.
“Following up with healthcare provider is your best course of action. Any time that you see leave that’s taken in any way that’s inconsistent with what was in the original certification, go to the healthcare provider. Get the employee’s own healthcare provider to look at that and confirm – or not – that this was proper. That is your safest course of action.” Barnsback told us. “Make sure that the first thing you look to do is to get the recertification from the healthcare provider. That really should be the first tool that you look to when investigating any sort of fraud or abuse.”
Another thing to remember is that moonlighting may not necessarily be FMLA fraud. For example, some serious health conditions may prevent an employee from performing the essential functions of the employee’s own job in your organization, but not another job. Again, it’s best to get clarification from the healthcare provider whether it is consistent with their medical needs.
That said, if you have a proper moonlighting policy, discipline may be appropriate even in absence of FMLA abuse. If you don’t have a policy, you may not have basis for taking disciplinary action.
For more information on investigating potential FMLA abuse, order the webinar recording of “FMLA Abuse Stops Now: Tips to Identify, Correct, and Prevent.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Michael E. Barnsback is an officer in the Alexandria, Virginia, office of LeClairRyan. He represents employers and employees in all aspects of federal and state employment law litigation from administrative hearings before the Equal Employment Opportunity Commission and local human rights commissions to formal trials in federal court.