The Family and Medical Leave Act (FMLA) provides a great benefit to employees. It allows qualified employees to take up to twelve weeks off of work unpaid to care for the employee or a family member suffering from a serious health condition. Some employees who suffer from medical conditions that arise without notice and sporadically can be preapproved to take FMLA leave intermittently. Unfortunately, some employees abuse FMLA leave. And companies know it. Employees using FMLA leave now must be prepared for companies to monitor FMLA leave much more strictly. This applies particularly to employees who use intermittent FMLA leave.
Companies carefully monitor the intermittent absences to look for patterns that suggest FMLA fraud or abuse. For example, does the intermittent condition always seem to flare up on a Friday or a Monday? Does it flare up around holidays? When the timing of leave suggests that an employee is manipulating it to get a three day weekend or to get more time off around holidays, be assured that an employer will investigate it more thoroughly. In other cases, an employee’s posts to social media draw the scrutiny of the employer. When an employee takes FMLA leave because of the employee’s own serious health condition, the company does not want to see photos of the employee on a tropical island enjoying fruity drinks. In that situation, the company will suspect fraud and investigate further. Many employees forget that they are friends on Facebook and other social media with their coworkers. Coworkers resent people who abuse FMLA. Coworkers will—and do—regularly report perceived FMLA abuse to their company.
Another common scenario is the employee who cares for a seriously ill family member but stays out on FMLA leave even after the family member dies. The need for FMLA leave ends when the family member dies. The employee should return to work after the approved time for bereavement. But sometimes, an employee has not returned to work and has continued to claim additional time as FMLA leave. In that situation, the employee loses the protection of the FMLA and faces termination.
Where things get really tricky is when the employee’s serious health condition prevents the employee from performing the essential functions of the employee’s job but do not fully incapacitate the employee. For example, an employee with a foot injury might not be able to perform certain required job duties until that foot injury heals. But the foot injury itself would not necessarily prevent the employee from traveling, doing some exercising, going to the movies or performing other daily activities. Yet if a company sees this activity, it may suspect fraud—even though it is entirely possible that the employee is not abusing FMLA leave. Some employers now hire private investigators to conduct surveillance on employees when they are suspicious about possible FMLA abuse. Some employers also request additional information from the physician who certified the need for FMLA leave. Any employee who uses FMLA leave now must expect the employer to fight back against FMLA fraud and abuse.