Targeting FMLA Fraud and Abuse: 10 Ways to Reduce Subtle FMLA Abuse

In our last installment, we covered moonlighting under the Family and Medical Leave Act (FMLA), and whether or not it constitutes as FMLA abuse. This article will cover dealing with subtle FMLA abuse.

Rooting out the more subtle types of FMLA abuse takes, first of all, diligence on your part to track patterns of leave. 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.

Evidence of a pattern of abuse is usually going to be circumstantial rather than medical, so 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.

Another strategy is to send a letter to the employee’s healthcare provider (HCP), through the employee, describing the pattern observed and asking whether there is a medical reason for it. If the healthcare provider says, “no,” then you can terminate or otherwise discipline the employee. Even if the provider supports the leave pattern, the employee will often shape up his or her act after that.

Finally, let’s take a look at some additional methods for reducing FMLA abuse in your organization:

1. It may sound obvious, but training supervisors about how the FMLA and your leave policies work should be your first step. Frontline supervisors are your eyes and ears, and employers depend upon them for information about potential FMLA abuse issues. Providing even 30 minutes of training for supervisors each year is invaluable. At the very least, it will sensitize them to the importance of giving you a heads-up when potential problems arise.
2. Once you have received a request for leave, the first rule in reducing abuse is to do your homework at the front end. Before assuming an employee is eligible for FMLA leave, take the time to run the eligibility traps. Sometimes employers find themselves first granting FMLA leave, only to later realize that the employee was not eligible for leave. This includes getting a new certification for every new 12-month period an employee seeks/uses FMLA leave.
3. Employers should consistently require certification (and recertification) of their medical condition. This lets employees know you are not asleep at the wheel when dealing with FMLA absences. Attach the employee’s job description or a list of their essential functions to the certification form so that the HCP can accurately assess whether they are truly incapacitated from doing their specific job.
4. Don’t settle for marginal medical certifications; require employees to provide satisfactory, detailed, and informative certifications as a condition of FMLA leave. If they don’t do so, follow up using all of the tools allowed you by the regulations—i.e., requiring the employee to correct the certification and following up with the HCP directly if necessary. However, it is generally considered safer to leave the responsibility of obtaining a satisfactory medical certification with the employee.
5. Be diligent in requiring employees to take leave that’s consistent with their medical certification; don’t make exceptions in sympathetic situations.
6. Ensure that employees provide enough information to distinguish between planned and unplanned leave. If they don’t provide adequate notice of planned leave, ask them to explain why. You can deny leave if they don’t have a good reason.
7. Note that although they may be justified in some circumstances, second or third medical opinions are not usually a practical solution. They delay the process and muddy the waters in terms of medical conclusions, not to mention that the employer ultimately bears the cost of those multiple examinations.
8. Another important strategy—and one that employers frequently overlook—is to exercise your right to require employees to furnish periodic updates on their status and whether and when they intend to return to work. Stay in communication with them to see how they are progressing. Employees who are trying to exploit the system will learn that periodic communication with HR or supervisors makes it more difficult for them to abuse their leave.
9. Throughout an employee’s absence, keep track of their use of FMLA leave and remind them from time to time how much leave they have used and how much they have remaining. Doing so can be particularly valuable when wrestling with intermittent leave.
10. Don’t be afraid to seek recertification if you learn info raising questions about the stated use of the leave.

Now that we’ve covered handling subtle FMLA abuse, let’s get your supervisors on board! In the next installment, we’ll cover tips on how to make sure all your supervisors are the same page when it comes to handling FMLA abuse.