- On June 11, 2015
How to Handle Difficult FMLA Abuse Cases
Handling FMLA Abuse
The Family and Medical Leave Act (FMLA) was created with the noblest of intentions – particularly the desire to allow employees the chance to balance their personal needs with their professional responsibilities.
Unfortunately, many people take advantage of these intentions and abuse FMLA leave for non-medical and non-family reasons. When it comes to establishing the validity of FMLA leave, the federal law places a heavier burden on the employer than the employee, charging companies with the task of determining the presence of FMLA abuse.
In fact, employees do not directly have to state that they are taking leave under the law. They merely have to provide enough information that an employer could reasonably conclude that FMLA leave is warranted. For example, if an employee missed work after suffering a major heart attack and receiving treatment at a hospital – the employer would likely conclude that any absences due to the situation fall under the auspices of the FMLA.
The specter of FMLA abuse shouldn’t hang over every request for time off. Employers need to individually assess each situation and employee. However, employers can get in trouble for not being consistent with all employees requests. an employee with a spotless attendance record should be treated the same as someone with a checkered past.
Assessing a Leave Situation
An employer should approach a suspicious leave situation by asking the employee to provide enough information to determine if the FMLA applies. This request can include asking for medical certification from the employee’s physician, hospital or healthcare provider.
Since some employees could withhold necessary information of their personal medical situation, several factors can indicate to an employer that a leave is valid under the FMLA. First, an employee might qualify if he or she misses at least three consecutive days of work. An employee also might qualify if they have a chronic medical ailment that includes debilitating flare-ups. Qualifying situations can also include family members with a serious medical condition or if a female employee is suffering from pregnancy complications.
An employer should also consider how a request for leave was made. If an employee calls in and says they are feeling sick, then standard company attendance policies should be applied.
Employers should know that they are not breaking any laws by simply trying to determine why their employees cannot work. To get relevant information, employers can use a number of general questions that can be asked when employees call in to report an extended absence.
HR or Leave representatives should find out the reason for the absence, when the employee first recognized a leave of absence would be necessary and if they have a chronic condition. If possible, an employer should also find out what job duties the employee can't perform and whether he or she is seeking care from a healthcare provider. The employer should also find out when the person is expecting to come back to work.
After gathering all this information, the employer should then review that employee’s attendance record for a pattern of absences that a requested FMLA leave might fall into. For example, if the employee always requests for leave on every Thursday and Friday a leave request that fits this pattern should be viewed with suspicion.
Investigating an Employee
If an employer does suspect FMLA abuse, the company or organization is justified in conducting surveillance of the employee in question or hiring an investigator to conduct an investigation.
According to Bloomberg BNA, video monitoring of the employee may be the best way to look into FMLA abuse. The video could be used to show that a person who is restricted from bending over at work has no problem doing just that while performing yard work. Of course, investigators should follow all laws, including privacy laws, while conducting surveillance.
FMLA abuse expert Dana Connell told Bloomberg BNA that video evidence of an employee performing restricted activities is not a “smoking gun” and does not mean that an employer is protected from legal action should they immediately terminate their employee.
In addition to surveillance and video recording, employers can also track an employee’s social media profiles for evidence they may be on vacation or unusually active for their alleged medical condition.
Be Vigilant, yet Careful
The FMLA does not shield employees from their work responsibilities or company policies. However, employers should refrain from trying to jump on a ‘gotcha’ moment and immediately fire someone the second a shred of evidence pops up. Employers should try to give their employees every last chance to explain themselves or rectify any issue related to an FMLA leave request. Providing an abundance of goodwill toward an employee will only strengthen the employer’s stance should the situation escalate into legal proceedings.