How can employers reduce FMLA/CFRA abuse?

Employers have the right to curb FMLA/CFRA abuse, but must do so in a way that doesn't hinder employees from taking their protected leaves. It can be a fine line to walk. Thankfully, employers do have some options.

"There are many challenges associated with employees taking leave, that range from the logistical end of things to the big, complex compliance requirements. Most employees take leaves for legitimate reasons, and everything goes really smoothly. However, you can face an employee who may be working the system. The best way, I think, to guard against that is to ensure that your leave procedures and practices are solid." Mary Topliff advised in a recent CER webinar.

Can social media, surveillance reduce FMLA/CFRA abuse?

Social media use in recent years has brought about a whole new facet to discovering potential employee abuse of leaves of absence. However, it must be used with extreme caution, and in some cases can't be used at all.

First, employers should not coerce employees to divulge social media information—do not require employees to disclose passwords or provide access to personal social media. If they choose to do so voluntarily, such as by "friending" a co-worker or supervisor, then that information becomes accessible, but should still be treated with caution. When using information from social media as the basis for investigating someone on a leave of absence, be sure to verify the validity of social media postings before taking any other action.

That said, even with confirmed validity, don't jump to conclusions either. "There can be potentially legitimate reasons for an employee to have gone to a social event while they're on a leave of absence—so I would also caution against rushing to judgment in terms of just seeing one Facebook post." Topliff explained.

Instead, look at the context and gather further information. Some employers opt to use employee surveillance. If you go this route, ensure all efforts are lawful, even if done by a third-party. Also consider the impact on future leaves of absences for other employees. If you investigate when one employee attends a social event while out on leave, for example, will you do so in all future instances?

If you do discover something that implies or proves that the employee was abusing FMLA/CFRA leave, prior to taking adverse action, ensure that the surveillance information clearly conflicts with medical certification and the stated reason for leave. Ask yourself whether the circumstances are so egregious that you don't feel you have a choice but to take action. If they're not that serious, it may appear that you're harassing the employee who is on leave—which could be construed as hindering their ability to take their legally-protected leave. Tread with caution.

The above information is excerpted from the webinar "FMLA/CFRA Abuse:
Practical and Legal Ways to Prevent Employees from Working the System." To register for a future webinar, visit CER webinars.

Mary Topliff, Esq., founded the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance, while focusing on practical solutions to avoid costly legal issues. Topliff is also a published author and frequent speaker on legal issues impacting the workplace.