While most employees take Family and Medical Leave Act (FMLA) leave for legitimate qualifying reasons and use it appropriately, we all know about occasions when they abuse the Act. Read on to learn more about how to combat FMLA fraud.
When New Baby’s Pictures Don’t Match
Consider a recent case in which an employee who worked for the state of Georgia told her employer in October 2020 she was pregnant. After announcing she had given birth in May 2021, the “child’s father” (who turned out not to exist) contacted the employer requesting leave for the employee to recuperate from the delivery. As a result, the state gave her seven weeks of paid leave. The employer later learned:
- A coworker had witnessed the employee’s false stomach “come away” from her body; and
- The employee sent new baby photos to coworkers, but with one major problem: The pictures appeared to depict different children.
Shortly after the Georgia Office of the Inspector General interviewed the employee about her pregnancy, she resigned. Now, not only is the employee out of a job, but she also was charged with three felony counts of false statements and one felony count of identity fraud.
A faked pregnancy to qualify for paid leave is undoubtedly an FMLA abuse outlier. Typically, the actions are subtler.
Sometimes FMLA abuse occurs when employees take more intermittent leave than their original medical certification called for. Other times, abuse can happen when the employee has a pattern of taking intermittent FMLA leave on Mondays or Fridays. Workers also post pictures of themselves on social media showing them on a beach, enjoying a round of golf, or engaging in other activity that appears contradictory to the medical necessity for the leave.
4 Best Practices for Employers
If you have a good-faith belief an employee is abusing FMLA leave, you should remember the following best practices:
Apply your policies. Review employee handbooks and other policies to ensure your company has a rule prohibiting dishonesty generally and/or FMLA abuse specifically. Apply the policies consistently. In the alternative, look at the form signed by the employee when requesting the FMLA leave. Did the individual acknowledge the information was truthful and correct?
Investigate. Review the employee’s FMLA leave request and any associated medical documentation. Look at the person’s attendance records. Are there any actual discrepancies between the two? Look at the timing of the request (e.g., does it coincide with spring break?). If a coworker reports suspicious or inconsistent information, follow-up. Get details from the coworker and try to identify any other witnesses who can shed light on the situation.
Speak with employee. Have a candid conversation with the employee to understand the full picture but be sure to exercise caution. Taking an accusatory tone or implying discipline could result in an FMLA retaliation claim. Take the opportunity to communicate expectations about call-in procedures, if needed, or review your company’s FMLA policy with the person.
Ask for recertification. If the investigation casts doubt on whether the employee’s original reason for the FMLA leave is still valid, you may be able to request recertification. Perhaps the employee’s condition has worsened, necessitating more days of leave per week than originally sought. Maybe the converse is true, and the worker no longer has a qualifying need for the leave. Examine the recertification, and make any adjustments, such as documenting any necessary additional days of intermittent leave or notifying the employee she is no longer qualified for it.
Whatever you decide to do, don’t make any decisions until you have all the facts.
Takeaways for Employers
While you shouldn’t allow suspected FMLA abuse to continue unchecked, a healthy dose of caution will go a long way. What may appear to be FMLA abuse in some situations could be an acceptable use in others. Conduct an investigation, talk to the employee, and seek recertification when appropriate. It may be nothing, or it could be a faked pregnancy warranting disciplinary action.
Janell M. Stanton is an attorney with Felhaber Larson in Minneapolis. You can reach her at jstanton@felhaber.com.