FMLA Abuse: 5 Things Employers Should Know

Written by Joanna Morrow

Joanna Morrow, Principal and Founder of Employer Benefits & Advice, is an employer consultant and advocate who has worked in the employee benefits industry for over two decades. She works diligently to help employers overcome obstacles in their business by sharing her expertise in Human Resources, Benefits & Compensation, Process Mapping, Risk Management and ERISA/DOL/IRS compliance. She is a licensed life and health insurance professional in the State of Arizona and is an active member of the National Association of Health Underwriters (NAHU).

FMLA Abuse: 5 Things Employers Should Know

The Family and Medical Leave Act (FMLA) was designed to help support employees who are dealing with a serious health condition or managing care for a loved one.

Unfortunately, like any leave of absence policy, there exists the opportunity for abuse by certain individuals which can cost employers in the way of lost productivity and added administration. The following is designed to help employers protect against such abuse.

First, some background history on FMLA:

  • It was passed with bipartisan support in January 1993 and was signed by President Clinton as the first accomplishment of his new administration.
  • It applies only to companies with 50 or more employees.
  • It affords qualified individuals up to 12 weeks of unpaid leave each year for family and medical reasons (26 weeks for military caretakers), without the risk of losing one’s job.
  • FMLA leave can either:
  1. come in one lump sum (i.e., taken all at once) or
  2. be used intermittently (i.e., used as the need arises).
  3. It’s the latter that can help to mask FMLA leave abuse unless employers know what to look for and how to protect against it. Read on for important tips.

What Absences Are Eligible Under “FMLA Leave”?

Eligible absences must be relative to a true family or medical reason and are defined as follows:

1 – RECENT BIRTH: An employee recently gave birth to a child and needs to take care of the child.
2 – RECENT ADOPTION/FOSTER: An employee has a new adopted or foster child.
3 – DEPENDENT WITH A HEALTH CONDITION: An employee needs to care for a spouse, son, daughter, or parent with a serious health condition.
4 – SERIOUS HEALTH CONDITION: An employee has a serious health condition and needs to take medical leave from work.
5 – QUALIFYING EXIGENCIES: (things that must be taken care of urgently) because an employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a military operation.

Since FMLA leave may be used intermittently, it can be difficult for employers to accurately track how those 12 weeks are being spent. For instance, an employee may use some FMLA leave for chemotherapy appointments or prenatal doctor visits—stretching their allotted time over several months.

Without proper tracking by the employer an employee using intermittent FMLA leave might abuse their allotted time—for example, misleading you about why they’re taking time away from work or not providing sufficient FMLA documentation, yet taking time off regardless.

What Does FMLA Leave Abuse Look Like?

Abuse of this benefit is considered to be present when an employee is using “FMLA Leave” as a status to cover his/her absence from work, for absences that do not fall into an “eligible absence” category.

While FMLA leave abuse is inherently tricky to identify, it most commonly happens when used intermittently – i.e. one day here, one day there. Here are some examples of what it may look like:

  • Taking FMLA leave without actually having a legitimate, qualifying re
  • Falsifying health records to indicate FMLA compliance.
  • Given the sensitive nature of FMLA leave abuse, it’s important for employers to have an established protocol for enforcing FMLA leave policies. This includes methods for curbing potential abuse.

Strategies for Curbing Abuse

The most effective way to protect against FMLA leave abuse lies in establishing well-thought-out policies, including specific requirements and clear penalties for violations. Consistent enforcement is also key, as that will help your case if FMLA leave must be denied or disciplinary action is required.

The following list represents 5 components of a good strategy for curbing FMLA leave abuse. To download an editable sample FMLA Leave policy click here.*

1 – Medical Documentation

Require employees to submit medical documentation—or a form drafted by your organization—to corroborate their need to take FMLA leave to care for a covered family member with a serious health condition or for the employee’s own serious health condition.

2 – Scrutiny

I recommend HR managers scrutinize the internal form or medical documentation to ensure it is fully and accurately completed.

If the submitted materials are incomplete or insufficient (as established by the policy above), send the employee a written request for additional information. Always specify a time period for receiving it.

3 – Management Training

Train managers to look out for tends, like frequent Monday and Friday absences, that may indicate FMLA leave abuse. Identifying such a pattern could necessitate that the employee resubmit medical certification for those absences.

4 – Legal Guidance

Empower managers to ask reasonable questions when an employee reports an absence. Managers should be trained to identify whether the conditions of an absence would qualify an employee for FMLA leave. Prior to acting, legal counsel should be consulted.

This is a step that a lot of employers skip as they don’t take the time to learn their rights and therefore, take at face value whatever they’re being told by the employee. However with a clear understanding of what you can and cannot ask, employers are empowered to protect against abuse.

5 – Knowledge of State Law

Depending on state law, consider prohibiting, in writing, the ability of employees on FMLA leave to work other jobs and still qualify for leave. For a comprehensive overview of FMLA guidelines for Arizona, click here.

Legal Considerations

Abuse of any kind, including FMLA leave abuse is a difficult subject for employers. Many companies rightfully fear triggering costly settlements or judgments. Employers may be wary of pursuing FMLA leave abuse and disciplining employees when there’s a chance of being hit by litigation.
However, such possibilities shouldn’t deter employers from taking action against employees who abuse FMLA leave and or/your internal policies.

Often a straightforward legal consult regarding your FMLA and other applicable leave policies before acting on a suspected FMLA leave abuser can have the employer holding the upper hand in the face of a malingerer. Above all else, document every interaction with employees on FMLA leave and retain those records indefinitely.

Summary

Curbing FMLA leave abuse may seem like an uphill battle, but having a clear policy can set you on the right path before any leave is taken. Once you have a policy, ensure managers and employees understand their rights and what is expected of them. Doing so will give you and your employees one less thing to worry about during their leave.

  • How prevalent is FMLA-related absence in your organization?
  • How well do your managers understand it?
  • Have you ever suspected abuse?

*Note this is a sample policy only. Employer Benefits & Advice recommends employers have all policy documents reviewed and in many cases prepared by an attorney who specializes in the appropriate area of the law.

If questions such as these stimulate more questions for you, or you would like expert guidance in developing a well-defined FMLA policy, contact me at 602-903-4047 or [email protected].