HR Management & Compliance

Targeting FMLA Fraud and Abuse: What is Fraud?

One of the biggest Family and Medical Leave Act (FMLA) frustrations for employers is what to do with an employee who appears to be abusing the law’s protections or, even worse, fraudulently using approved leave for non-FMLA purposes.

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Although the U.S. Department of Labor (DOL) regulations attempt to provide employers with tools to manage and control such behavior, employers still frequently feel helpless. There is no one foolproof remedy or strategy for handling such issues. In fact, there may be situations in which your best approach is to simply grin and bear it.

But there are also 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. For example, employers tend to have better luck sniffing out an employee who takes a week of FMLA leave to go on a hunting trip than proving that one is using an already certified medical condition as an excuse to sleep in on Monday mornings.

So let’s take a look first at FMLA fraud—what it is and what it is not—before moving on to the more intractable issue of abuse.

What fraud isn’t

First and foremost, just because an employee is on FMLA leave doesn’t mean he must sit at home on the couch all day or be bedridden. It also does not mean the employee can never leave the side of the person she has been approved to care for during an FMLA leave.

So, for example, seeing an employee at the mall while they are on FMLA leave does not mean they are committing FMLA fraud, or even abuse. Even if you see an employee working at the mall, they may not be committing fraud.

Keep in mind that the “may” here depends in part on whether or not you have a moonlighting policy that prohibits employees from working a second job while on leave. If you don’t have such a policy, the mere fact that an employee is found to be working for another employer during leave will not be proof of fraud.

What fraud is

So what is FMLA fraud, then? It is, quite simply, using FMLA leave in situations that lie outside of the medical or other parameters for which it has been approved. Some examples include:

  • Working for another employer doing the same or similar duties that the employee’s medical certification form says she is unable to perform.
  • Working another job when the employee is supposed to be on leave for a doctor’s appointment.
  • Using leave to cover a personal absence that is not related to a serious health condition at all (such as the hunting trip mentioned earlier).
  • Employees who cannot “stand, twist, or bend” at all at work according to their certification form yet—strangely—can “leap tall buildings in a single bound” on the softball field.

In our next installment, we’ll look at moonlighting and other activities that may constitute FMLA fraud or abuse.

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