FMLA Abuse: What It Looks Like and How Employers May Respond

What Counts as FMLA Abuse

The FMLA and its regulations do not define "abuse." In practice, the term covers three things, and the response to each is different.

The regulations address each. An employee who fraudulently obtains FMLA leave is not protected by the job restoration or health benefit provisions (29 CFR 825.216(d)), and an employee who ignores the employer’s usual notice procedures, without unusual circumstances, may have FMLA protection delayed or denied for that absence.

What FMLA Abuse Patterns Look Like

These are signals that justify a closer look. None is proof.

• Timing patterns. Unscheduled absences that cluster on Mondays and Fridays, next to holidays or scheduled days off, on days a disliked assignment falls, or after a denied vacation request.
• Use beyond the certification. The certification estimates two episodes a month of one day each, and the employee is taking eight.
• Inconsistent activity. Credible reports or public posts showing activity that does not fit the stated incapacity, including work at another job.
• Call-in problems. Absences reported late or not at all, or reported as FMLA only after discipline is raised.
• Document problems. A certification that is vague, altered, or signed by someone the provider’s office does not recognize.

Now the caution. Chronic conditions do flare after weekends and under stress, many conditions limit work without limiting all activity, and a social media photo has no reliable date. The question is never "does this look bad?" but "is this consistent with what the health care provider certified?" Only the tools below can answer that.

The Lawful Tools for Responding to Suspected FMLA Abuse

1. A Complete and Sufficient Certification

The certification sets the baseline. If it is incomplete or vague, send it back: state in writing what is missing and give the employee seven calendar days to cure. For intermittent leave, press for the expected frequency and duration of episodes, because you cannot measure overuse against "as needed."

After the cure period, the employer may contact the health care provider, but only to authenticate the document or to clarify handwriting or the meaning of a response. The contact must be made by a health care provider, a human resources professional, a leave administrator, or a management official. The employee’s direct supervisor may never make it. No additional medical information may be requested, and HIPAA’s privacy rule must be satisfied where the provider is a covered entity.

If you have reason to doubt the validity of a certification, you may require a second opinion at your expense from a provider you choose, as long as you do not regularly employ or contract with that provider. If the two opinions differ, a third, from a provider approved jointly, is final and binding. The employee is provisionally entitled to FMLA protection while this is pending.

Details: medical certification, recertification and second opinions.

2. Recertification

Recertification is the tool the regulations built for this problem.

• General rule. No more often than every 30 days, and only in connection with an absence.
• Longer certified duration. If the certification says the condition will last more than 30 days, wait until that period ends. In all cases, you may ask every six months in connection with an absence.
• Sooner, when: the employee asks to extend leave, circumstances described in the certification have changed significantly, or you receive information that casts doubt on the stated reason for the absence or the continuing validity of the certification.

The regulation gives examples. An employee certified for one to two days per migraine who takes four days for each of the last two episodes is a significant change, and so is a pattern of unscheduled leave next to scheduled days off. An employee on leave for knee surgery who plays in the company softball league is information casting doubt.

When you ask for recertification, you may send the provider a record of the employee’s absence pattern and ask whether the condition and the need for leave are consistent with it (29 CFR 825.308(e)). The provider either confirms the pattern, which ends the question, or does not, which gives you a documented basis to act.

Limits: allow at least 15 calendar days to respond, recertification is at the employee’s expense unless you provide otherwise, and no second or third opinion may be required on a recertification.

3. Call-In and Notice Rules

An employer may require employees to follow its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. That can include calling a designated number or a specific person within a set time. Where the employee does not comply and no unusual circumstance explains it, FMLA-protected leave may be delayed or denied. An employee who needs emergency treatment is not expected to call until able to, and a policy cannot demand earlier notice than the regulations themselves require.

The policy must be enforced the same way for FMLA and non-FMLA absences, and discipline must be for the failure to follow procedure, not for the absence. A related rule runs the other way: FMLA-protected absences may not be counted under a no-fault attendance policy. See no-fault attendance policies and protected leave.

4. Accurate Tracking

You cannot show overuse without records. Track intermittent leave in the smallest increment you use for other leave, never more than one hour, and compare actual use with the certification every month. See tracking FMLA intermittent leave and the FMLA intermittent leave guide.

5. Other Tools in the Regulations

• Temporary transfer. For foreseeable intermittent leave based on planned treatment, you may transfer the employee temporarily to an alternative position with equivalent pay and benefits that better accommodates the absences. The transfer may not be used to discourage leave or to create a hardship.
• Outside employment policy. A uniformly applied policy on outside work continues to apply during leave. Without one, you may not deny FMLA benefits on that ground unless the leave was fraudulently obtained.

6. A Fair Investigation

Where the facts point to fraud or misuse, investigate as you would any other suspected misconduct: gather the records, hear the employee’s explanation before deciding, and document what you found. Surveillance and review of social media carry risks of their own. State privacy, social media, and off-duty conduct laws vary; confirm with counsel before using either. The full method is in investigating suspected FMLA abuse, and the How to Identify and Investigate FMLA Abuse webinar is a related training option.

The Honest Belief Defense, and How It Varies

Suppose you investigate, conclude the employee misused leave, and terminate. Later the employee produces evidence that you were wrong. Are you liable?

In several circuits, an employer that acted on an honest belief may defeat a retaliation claim even if the belief turns out to be mistaken.

• Third Circuit. In Capps v. Mondelez Global LLC (2017), the court held that "an employer’s honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim."
• Sixth Circuit. In Seeger v. Cincinnati Bell Telephone Co. (2012), an employee on leave for a herniated disc was seen by coworkers at Oktoberfest and was terminated for disability fraud. The court affirmed judgment for the employer. Under the Sixth Circuit’s rule, the employer must show that it reasonably relied on particularized facts that were before it when it made the decision. The burden then moves to the employee to show the belief was not honestly held.

The defense has limits, and they differ by court.

• It is a defense to motive. It answers a retaliation claim, which turns on why the employer acted. An interference claim asks whether the employee was denied a benefit he or she was entitled to. In the Ninth Circuit, for example, the court has said that in interference claims "the employer’s intent is irrelevant to a determination of liability" (Sanders v. City of Newport, 2011). An honest but mistaken belief may be no answer there.
• The quality of the investigation matters. A court applying the Sixth Circuit rule asks whether the employer made a reasonably informed and considered decision. A decision made on a rumor is hard to describe that way.
• Circuits state the test differently. Confirm with counsel whether the circuit where the employee works recognizes the honest belief defense, what the employer must show, and whether it applies to interference claims.

Everywhere, the defense is earned by the process: specific facts, a fair chance for the employee to respond, and a record made at the time.

The Interference and Retaliation Risk

The FMLA prohibits interfering with, restraining, or denying the exercise of FMLA rights, and prohibits discrimination and retaliation for using them. The regulations say that interference includes not only refusing to authorize leave but discouraging an employee from using it, and that an employer cannot use FMLA leave as a negative factor in employment actions such as hiring, promotions, or discipline.

Retaliation claims usually come down to three things: the employee took or requested leave, the employer took an adverse action, and the two are connected. Adverse actions range from termination to a worse shift or an unfair review. Timing is often the employee’s main evidence, so discipline soon after leave needs a documented reason that stands apart from the leave.

What is at stake: lost wages and benefits or other actual monetary losses, interest, an equal amount as liquidated damages unless the employer shows good faith and reasonable grounds, and reinstatement or promotion where appropriate. Suits must generally be filed within two years, or three for a willful violation. Individuals such as corporate officers acting in the employer’s interest can be personally liable.

How abuse responses go wrong:

• A supervisor calls the employee’s doctor.
• Recertification is demanded every time the employee is absent, with no basis in the rules.
• Protected absences are counted as attendance points.
• An employee is disciplined on the strength of a photo, without being asked about it.
• The employee is moved to a worse shift after returning. See FMLA job restoration rights and the key employee exception.

More on prevention: preventing retaliation claims related to leave and workplace retaliation: what counts and how complaints start.

A Short Decision Path

1. Record the facts: dates, hours, who reported what, and how it compares with the certification.
2. Pick the tool the rules provide. Cure an inadequate certification, request recertification with the absence pattern attached, or enforce call-in rules that apply to everyone. HR, not the supervisor, owns contact with the provider.
3. Investigate if the facts suggest fraud or misuse, and hear the employee’s side before deciding.
4. Discipline for conduct, not for leave, and document the reasons at the time.
5. Involve counsel before surveillance and before terminating an employee on or just back from leave.

Prevention Is Mostly Training

Managers need to know that they must report possible leave requests, may not ask for a diagnosis, may not contact a provider, and should bring pattern concerns to HR with dates and facts. See FMLA training for managers.

For administrators, the skill is choosing the right tool and using it within its limits, often while the ADA is also in play: in Capps, the Third Circuit confirmed that a request for intermittent FMLA leave may, in some circumstances, also be a request for an ADA accommodation. The two-day Leave and Accommodation Management seminar covers medical certification, employer rights and employee responsibilities under the FMLA, and retaliation risk, through case studies and exercises.

Frequently Asked Questions

The Bottom Line

FMLA abuse is real, and so is the liability for handling it badly. The regulations already supply the response: a complete certification, recertification with the absence pattern, uniform call-in rules, accurate tracking, and, where warranted, a fair investigation. Discipline conduct, never protected leave, and keep the record an honest belief defense depends on.

For the investigation steps, read investigating suspected FMLA abuse; for quick answers, see the FMLA FAQs. To practice these judgments with an instructor, see the Leave and Accommodation Management seminar. This article is general education, not legal advice.