How To Spot And Control FMLA Abuse

The Family and Medical Leave Act provides 12 weeks of unpaid leave for employees with a serious health condition or who have a spouse or immediate family member with a serious health condition.

So, you might ask, what is considered "serious"?

According to the Department of Labor, a serious condition is defined as a condition that would require an employee to be incapacitated for three consecutive days, see a health care provider within those three days, have to go back to the doc within seven days for additional follow-up, and then have either ongoing treatment beyond that or have to go back to the doc within 30 days.

However, the "ongoing" treatment part is where it gets tricky.

As an example, many employees call in "FMLA" on Fridays or Mondays. Is this FMLA use or FMLA abuse? In one case, it puts a burden on co-workers to cover for or replace the employee; on the other, it is typical of employees gaming the system so they can come/go as they please without repercussions. On top of this, many managers fear challenging potential abuse for fear of stepping on legal landmines.

For many businesses, particularly smaller employers, the need for productivity and efficiency is critical, so having someone call out at the last minute can be extremely detrimental to running a business smoothly.

Yet, when employers are experiencing rampant abuse of FMLA leave - and not holding employees accountable - it is the same as being overcharged by suppliers or robbed by thieves.

So...why don't more employers clamp down on the abuse? The answer: because they don't know how. To assist, here are a few tips to get you started on curbing FMLA abuse:

• Perform an audit on all FMLA-granted leave within the past year.
• Identify patterns. When do employees call in? Are they giving adequate notice before the start of their shifts? Are there patterns with "FMLA days"? For instance, always on Mondays or Fridays or in conjunction with off days?
• Review your FMLA company policy regarding using paid time off. If you do not require employees to use their sick/vacation/PTO concurrently with FMLA leave - then consider changing your policy. This one change alone will vastly improve your productivity.
• Change your policy to prohibit moonlighting. For some employers, FMLA abuse happens when employees wish to take time off from the primary employer in order to work on or secure other employment. In one instance, an employee with an accounting/tax background took 8 weeks of FMLA during tax season. She used the company's salary continuation benefits to receive full pay for the first four weeks, then took a week of paid vacation, and then three weeks unpaid. However, she earned far more money doing taxes, so she made out like a bandit. Tip: Check with legal counsel to prohibit moonlighting as your policy.
• After auditing your FMLA cases and finding potential FMLA abuse and/or FMLA fraud, consult with legal counsel. Doing so may result might launch an internal investigation to determine if the employee is actually abusing FMLA and demonstrating misconduct - or it may simply help stop future abuse.

Strategies For Identifying FMLA Abuse

Even though the FMLA regulations are complex, confusing, and present loopholes that are easy to exploit, organizations should not be reluctant to deny leave or terminate troublesome employees for fear of being sued. That said, be sure you know:

• Your employer obligations under the Family and Medical Leave Act
• When and how to use medical certifications
• How to effectively document FMLA use to confront abusers
• The steps involved in an internal investigation
• How to acquire physical, documentary, and testimonial evidence
• How to evaluate investigative findings and prepare a report that is court-ready

...and importantly, make sure your organization has company policies in place to effectively manage FMLA leave and help prevent abusers of leave.

For more information on how to handle FMLA abuse, please refer to:

• How To Identify And Investigate FMLA Abuse
• FMLA Training & Certification Program
• Certificate Program In FMLA, ADA, Compliance
• Internal Investigations Certificate Program

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