“Intermittent leave and reduced schedule leaves are sometimes fertile grounds for deception and fraud.” Charlie Plumb told us in a recent BLR webinar. Intermittent leave is one of the toughest parts of the FMLA to administer and it can cause frustration for employers, employees, and their coworkers. This is never more so than when fraud is suspected.
What is FMLA Fraud?
“First of all, understand what suspected fraud means—what fraud under FMLA means. It means intentional – not accidental or just being a slacker – it means intentional deception or untruthfulness.” Plumb explained.
FMLA fraud can be two types:
- Using real, approved, FMLA leave for non-FMLA purposes.
- Misrepresenting the medical condition in question, such as altering the medical documentation. (The employee could be misrepresenting their condition to employer or to the medical professional).
Handling Suspected FMLA Fraud: What Can an Employer Do?
In the context of intermittent leave, what can an employer do when fraud is suspected?
“You have the right, as an employer, to investigate instances in which you have some sort of honest suspicion that I am abusing or using FMLA leave fraudulently—particularly intermittent leave.” Plumb told us. This honest suspicion standard is really intended to protect the employer against a claim that they are interfering against FMLA leave and/or being retaliatory.
An employer my receive information from a supervisor’s observations, a co-employee, or even from a third party that leads to honest suspicion. Here are some examples that may give rise to honest suspicion:
- Absence patterns
- Absences coinciding within non-work events
- Absences that differ from the medical certification in frequency or duration
- Sightings or reports of the employee in inappropriate places
Here are some guidelines when investigating FMLA absences for suspected fraud:
- Ensure that the suspicion was reasonable. Can you explain what gave rise to the suspicion of abuse or fraud?
- Use a qualified professional for surveillance if needed. They will be more objective and will not look as retaliatory later (as it may look if people within the company trailed others).
- When questioning absence patterns, look over a long time period and compare with other employees. If something is a real pattern, it needs to happen over a long period of time to be truly suspicious. Ensure that the questionable pattern is really an anomaly from what other employees routinely take.
- Review the medical certification. See if the absences are consistent with what the healthcare provider said to expect.
- Confront the employee, explain what you have discovered, and take the very important step of giving them an opportunity to explain.
For more information on handling suspected FMLA fraud or abuse, order the webinar recording of “FMLA Intermittent and Reduced Schedule Leave: Master Top Challenges When Managing Frequent or Unexpected Absences.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Charlie Plumb represents management in all phases of employment law and labor relations and also serves as leader of McAfee & Taft’s Labor & Employment Group.