By Steven A. Nigh
I. FMLA Abuse: Tough to Stop, Even When You Can Spot It
Employees who abuse Family and Medical Leave Act (FMLA) leave often pose thorny problems to human resources professionals. Consider the employee who requests intermittent leave, but always uses it at the most “convenient” times, like Fridays or the day after a “big game.” Or consider the employee whose FMLA certification states that he needs two days off per month, but always seems to need four days off per month. You might know in your gut that FMLA abuse is occurring, but hesitate to discipline or discharge because doing so might trigger an FMLA interference or retaliation claim.
This article covers some of the options employers can use to ferret out and stop FMLA abuse. Note that although some of these strategies may be helpful for combating leave abuse relating to COVID-19 issues, this article is not intended to specifically cover the amendments to the FMLA spurred by the COVID-19 pandemic. The FMLA issues covered here cropped up before the pandemic and will continue after it passes.
II. One Approach: Requesting Recertification
The FMLA’s regulations contain a built-in option for combating FMLA fraud: the recertification process. Typically, an employer may request recertification no more often than 30 days. But there are some situations when the regulations specifically allow the employer to request recertification more frequently than that. These situations include an employee requesting an FMLA extension; the circumstances described by the previous FMLA certification changing significantly; or the employer receiving information that “casts doubt” on the employee’s reason for the certification, or its continuing validity.
Would the scenarios above allow the savvy human resources professional to request recertification? They probably would. The employee whose certification says he needs two days off per month, but always takes four? That would likely qualify as “changed circumstances” that permit a recertification request. What about the employee who always uses FMLA at “convenient” times, such as to nab long weekends or follow his college hoops team (during times when we had college hoops)? That leave pattern likely “casts doubt” on the employee’s stated need for leave. Be careful, though, in any potential FMLA fraud situation about automatically jumping to the conclusion that the employee is abusing leave. Employers are best-positioned to make defensible decisions when they can articulate the details as to why the employee’s leave usage was suspicious.
What does requesting recertification provide the employer? For one, it allows the employer to notify the employee’s healthcare provider of the suspicious leave pattern and ask the provider if the health condition and duration of leave are consistent with the leave pattern. Some healthcare providers will refuse to affirm that the employee’s leave pattern is consistent with their health condition. In that case, the employer may deny leave within the parameters of the inconsistency. For example, if the employee is taking four days per month off, but the healthcare provider only affirms the need for two days, then the employer need only grant the two days of leave per month. Even if the healthcare provider supports the employee’s absence pattern, the employee will at least know that the employer is keeping an eye out for appropriate FMLA use. Finally, some employees feel like “the jig is up” when recertification is requested, and simply refuse or fail to complete the recertification paperwork. This is a basis for denying any FMLA leave moving forward.
III. Recertification Didn’t Stop the Fraud: What Else Might Work?
Many human resources professionals think of discipline or discharge when the words “employee” and “fraud” are used in the same sentence, and with good reason. But they might hesitate to discipline or discharge an employee who is currently on FMLA leave or recently returned from leave because of the likelihood of interference and retaliation claims. But where necessary, are discipline and discharge allowed in FMLA abuse situations?
The answer is a firm “maybe.” Many courts permit employers to use an “honest belief” defense to FMLA claims, in which the employer can argue that it disciplined or discharged an employee because the employer honestly believed he or she was abusing FMLA leave, even if that ultimately turns out not to be the case. However, keep in mind that this is a defense that has developed across individual court cases, so its winning potential varies from case to case. Additionally, even though the courts have not prescribed exactly what employers must do to prevail with this defense, the consensus seems to be the more investigation prior to discipline, the better. Again, that means do not jump to conclusions: take the time to review the active FMLA certification, the employee’s attendance records, and any communications from the employee about the reasons for or timing of leave days. Once you have all the facts you can gather from “behind the scenes,” get the employee’s side of the story. This might yield a good reason for the employee’s absence pattern, and in turn, the opportunity to keep a productive employee. It also might yield a story that is demonstrably false, in which case the employer will feel more comfortable cutting ties.
IV. Closing Thoughts
FMLA fraud can be tricky to spot and trickier to correct. Some ill-intentioned employees are smart about how and when they use their leave—the court cases even include stories of employees ditching private investigators just like in the movies! But human resources professionals have options:
- Pay attention! Someone (in HR or management) should be watching for suspicious leave patterns. In any kind of discrimination or retaliation case, including FMLA retaliation, the employer makes its litigation life more difficult by allowing misconduct for a period of time and then “all of a sudden” disciplining or discharging an employee for that misconduct. This step is especially important and sometimes overlooked when an employer uses a third-party administrator for its FMLA leave programs. You won’t be able to correct an abuse you don’t know about!
- Remember the Recert. Employers can request recertification, even more often than 30 days, when the circumstances underlying the leave request change, or the employer receives information that casts doubt on the employee’s need for leave or pattern of leave usage. The recertification request is a relatively safe approach, as it is built into the FMLA’s regulations.
- “Just the facts, Ma’am.” If you’re thinking of using the honest belief defense, make sure you get your facts first! The best honest belief defense is one that is grounded in facts that are proven true, but if you turn out to be wrong, you want to be able to show a court that you investigated thoroughly and gave the employee a fair shake.
The guidelines above will help you deal with many FMLA abuse situations. But each of these situations is highly individualized and often complicated, so it is a good idea to call counsel for assistance.
Steven A. Nigh, Associate
Littler Charlotte Office
snigh@littler.com
www.littler.com