Preventing, detecting, and addressing FMLA leave abuse

Whether deliberate or accidental, misusing paid medical or family leave costs U.S. employers millions of dollars each year. In fact, research from the Society for Human Resource Management (SHRM) found that 52% of employers believe they have granted questionable FMLA leave. In today’s leave landscape, employees have more options than ever for taking leave, which can lead to confusion and missteps for employers. Employee leave abuse is when authorized time off from work is used without legitimate reasons or for personal gain. It can come in many forms, such as excessive or unauthorized absences, patterns of leave usage that may not be tied to qualified reasons for leave, and even providing false information to gain approval for leave. As an employer, being taken advantage of places strain on your organization and undermines confidence in leave programs and employee morale.

What can an employer do to prevent leave abuse?

While it is impossible to eliminate leave abuse entirely, the following strategies can reduce or prevent its occurrence significantly.

1. Clearly define your leave policies.
   When leave policies aren’t well-defined or accessible to employees, processes and expectations are left to interpretation. Establish comprehensive leave policies that clearly outline the types of leave available, eligibility criteria, the process for requesting leave, documentation requirements, and any restrictions or limitations. Make sure employees are familiar with these policies and have easy access to the information through your employee handbook or leave portal. By setting expectations from the outset, you create a transparent environment that discourages abuse.
2. Establish clear and open lines of communication.
   Accidental misuse of paid leave is often the result of distrust or discomfort among employees. The circumstances surrounding leaves of absence are often sensitive; this can be mitigated by ensuring your employees feel comfortable and safe discussing their needs with the company representatives managing their cases. Foster a culture of open communication. Encourage employees to provide advanced notice for planned leaves or updates regarding unexpected circumstances. Implement best practices for consistent check-ins while an employee is out on leave.
3. Maintain thorough documentation.
   Keep meticulous records of all FMLA-related interactions and documentation. Require employees to provide appropriate medical certifications for leave requests and maintain a consistent process for documenting leave durations. This helps verify the legitimacy of leave and minimizes the risk of abuse.
4. Leverage systems for tracking and reporting.
   Whether you are administering leaves via spreadsheets or a leave management software application, employers will benefit from tracking requests every step of the way and assessing their employee leave data to identify potential abuse. With a consistent approach to receiving requests and managing leave cases, red flags are identified in real-time and corrective actions can be taken to address different scenarios appropriately. Review leave data reports regularly to determine if some patterns or inconsistencies require further investigation.

How can you tell if an employee is intentionally abusing family or medical leave?

Unfortunately, there are cases where leave abuse is intentional. To take appropriate action, employers should be aware of common red flags. These include:

1. Frequent short leaves.
   Take note of employees who frequently request short-term FMLA leave. While intermittent leave is permissible for medical conditions, an excessive pattern of short leaves could indicate potential abuse.
2. Suspicious timing.
   Be cautious when an employee requests FMLA leave immediately before or after weekends, holidays, or scheduled days off. Such timing might signal an attempt to extend time off for personal reasons.
3. Unexplained absences.
   Employees who fail to provide adequate documentation or explanations for their leave may be engaging in abuse. Keep an eye out for incomplete or vague medical certifications.
4. Inconsistent patterns.
   Be vigilant about inconsistent patterns in an employee’s absences or requests. An abrupt change in the type or frequency of FMLA leave could warrant further investigation.
5. Alteration of medical certificates.
   This is falsifying a diagnosis or distorting a medical certification to qualify for or extend leave beyond what the medical professional has noted. This constitutes fraud on the part of the employee, which is grounds for termination.
6. Questions surrounding leave certification or recertification.
   You may receive information that casts doubt on the evidence provided by the employee to qualify for leave or some aspect of it, such as the recommended duration of the leave. An employee may fail to submit a medical certification or recertification within a mandated timeframe or provide unclear details, making it difficult to determine if the specific circumstances and conditions meet a qualifying reason for leave.
7. Performing similar tasks at another job.
   In some cases, an employee on paid leave from one job may work for another employer during the leave period. This alone is not necessarily leave abuse, but if the employee is performing the same or largely similar duties — indicating that the individual can accomplish the essential job duties and thus may not qualify for the leave — it may be a case of leave abuse.

How should an employer address leave abuse?

If you suspect FMLA leave abuse has occurred, address it promptly in an objective and professional manner.

1. Open dialogue.
   If you suspect FMLA abuse, initiate a confidential conversation with the employee. Approach the discussion with empathy and inquire about the reasons behind their leave patterns. A respectful dialogue can help uncover any underlying issues.
2. Medical certification review.
   Request a review of the employee’s medical certification by a designated healthcare professional. This step ensures the legitimacy of the medical condition and validates the need for FMLA leave.
3. Documentation.
   Create a timeline of the leave entire leave case. Keep records of communication regarding the leave and potential abuse including submissions, medical records, and any corroborating evidence.
4. Progressive discipline.
   If abuse is confirmed, apply your organization’s disciplinary policies consistently. Depending on the severity of the abuse, progressive discipline measures may include verbal warnings, written reprimands, or suspension.
5. Seek external help.
   In cases of abuse that require severe disciplinary action or separation, consider seeking an investigator or legal counsel to ensure compliance with FMLA regulations. A third-party experienced in employment law can guide you through the appropriate steps and help you navigate potential legal implications.

Preventing and addressing FMLA abuse is essential for maintaining a balanced and productive work environment, mitigating financial losses, and fostering a healthy work environment. By establishing clear policies, promoting education, and facilitating open communication, you can reduce the risk of abuse while supporting your employees’ well-being. Recognizing red flags and addressing instances of abuse in a fair and consistent manner will not only protect your organization but also reinforce a culture of integrity and accountability.