Unfortunately, FMLA (Family and Medical Leave Act) abuse occurs. When companies do catch it, the cases frequently end up in court, where the company can only prevail if they can show that they meticulously recorded the leave, carried out a comprehensive inspection and were able to establish beyond a possible suspicion that the abuse occurred.

Although employee rights are well guarded, you, as an employer, have legal options available when dealing with FMLA abuse, provided you have substantial proof to back up your claims. With the correct strategy and workforce management software, you won’t need to worry about FMLA abuse cases much.

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What Is FMLA Abuse?

FMLA abuse is an issue wherein employees take undue time off by abusing the Family and Medical Leave Act rights. It is often challenging to end it because so many rules protect employee rights.

The FMLA, or the Family and Medical Leave Act, may grant up to 12 weeks of unpaid leave to specific staff members employed by covered employers each year. Companies must also offer health benefits when the worker is working actively. Public organizations, including state, local and national companies and public school systems, are examples of covered employers.

Private employers must also offer FMLA leaves if they have 50 or more employees for at least 20 weeks (or in the prior year). The FMLA provides leave in the event of severe disease, the birth and care of a newborn baby, the placement or adoption of a child, or the need to provide for a member of one’s immediate family with a critical medical condition. It is also possible to take intermittent leave for severe illness.

Intermittent leave appears to be the main offender for FMLA abuse. Employees who take intermittent leave sometimes stretch out their FMLA-eligible leave several times rather than taking it all at once and for one particular reason. Due to the complexity of the FMLA, many employers are reluctant to pursue employees, even when they are blatantly abusing their leave.

There are two main issues here:

• There is no minimum duration of time that employees are entitled to intermittent leave under FMLA regulations.
• The medical issues most frequently linked to intermittent leave, such as migraines, can be challenging to prove.

Coworkers who are often required to perform extra work due to some employees taking unneeded leave may resent the coworkers they’re covering for. If they see the responsible party out and about or on social networking sites looking perfectly fine, they will have no qualms about alerting their superiors. This resentment can also affect the employee’s job satisfaction, productivity and skill development.

FMLA Fraud vs. FMLA Abuse

Employees who fraudulently request FMLA leave from their employers are not entitled to any FMLA benefits or employment restoration rights. To put it another way, this employee is guilty of forgery or scams, so the company can terminate them. Falsifying certification records or documents is one type of FMLA fraud.

Contrarily, FMLA abuse happens when a worker makes improper, disproportionate or excessive use of the system. Without actually defrauding, someone might be going above and beyond. They may still be eligible for reinstatement and leave.

Precautions

You, being the employer, must exercise caution and ensure that they fully comprehend the laws regulating FMLA abuse before proceeding.

For example, professionals who are the primary caregiver for a sick family member may ask for time off to care for them even if there are no medical issues. The care duties don’t need to be connected to medical assistance, nor are they permanently restricted to any particular location.

Employees can even take advantage of FMLA leave to travel with disabled people to meet their regular dietary, hygienic and health care needs.

You must proceed with caution when handling FMLA abuse, but you can take some steps to solve the issue. The essential elements for success are:

• Ensuring that employees in the organization are thoroughly knowledgeable about FMLA regulations.
• Dealing with the issue carefully rather than quickly.

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Uncover FMLA Abuse

Courts have upheld the concept that employers who have cause to believe a worker has violated the FMLA have every right to put that worker under observation, including employing a third party to record every action the worker takes in public on audio-free video recording.

However, before doing so, you might need to provide compelling reasons for suspicion, such as:

• Showing Absence Patterns: Staff members frequently miss work beyond their supposed time off days.
• Taking Longer Absences: Employees take leaves more often than reasonable given their condition, and for longer time periods.
• Missing Friday and Monday: Often referred to as the Friday and Monday Leave Act, a sign of FMLA abuse may be when employees take leave after disagreeing with new job tasks, or they frequently ask for Friday or Monday off. You can’t suspect that these actions constitute abuse of absence. Instead, you must decide if the FMLA protects the worker and if the time off was legitimate.
• Altering Medical Certificates: Falsifying a diagnosis or distorting a medical certification to take leaves or stretch beyond what the medical professional noted. Actually, this goes beyond abuse and constitutes fraud, in which case you can terminate the employee’s employment.
• Performing Similar Duties at Another Job: Performing the same duties at a different job while on FMLA/CFRA leave (which reflects that the individual can accomplish the essential job duties and thus may not qualify for the leave). Be cautious, though, as there may be other factors that may not be sufficient proof that the employee is abusing the system.
• Recertifying Leaves Taken: The circumstances outlined in the earlier certification have substantially changed (such as the length or frequency of the absences), and you have received information that raises questions about the employee’s claimed cause of the absence or the certification’s continued validity.
• Failing To Provide Certifications or Recertifications: If an individual fails to submit a certification or recertification within a reasonable time frame citing the specific circumstances and conditions.

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Steps To Stop FMLA Abuse

Sending the message that you are keeping an eye on abusers can aid them in stopping. Acquiring medical credentials and recertifications for severe illnesses and having thoughtful conversations with staff who may be abusing FMLA time off can help send this message.

You can take measures to substantially reduce or even completely eliminate FMLA abuse.

Seek Alternatives

Check to see if there might be solutions if workers claim that problems at work are making them sick enough to need time off. For instance, those who experience migraines may profit from scent-free workspaces, changing fluorescent lamps for something more conducive to productivity or even something as basic as a noise-canceling headset.

Demand Paperwork

Demand that employees complete forms when requesting time off. It is frequently sufficient to prevent excessive absences by requiring a written request for the leave. Additionally, this can enable HR employees and supervisors to have leave records when looking into FMLA abuse.

Require Call-ins

You may insist that FMLA leave be subject to the standard call-in strategy. Employees who don’t report to work sick could be denied FMLA leave by their employer, barring unusual circumstances. Once they know they must call each day they are off work; many people will be reluctant to misuse their FMLA rights.

Exhaust Vacation Time First

According to regulations, FMLA leaves must be taken uncompensated. Employers are permitted to demand that their staff members exhaust all of their paid time off before beginning unpaid FMLA leave.

Talk With Employees

It would help if you confronted employees who you suspect of abusing leave. Evaluate the FMLA policy, reiterate the call-in prerequisites and establish expectations for the details the worker would provide when calling in an absence.

Investigate Employees

You should identify FMLA abuse-related problems and refer them to your HR department or a lawyer for analysis.

You ought to look into the matter and speak with the person who might be abusing FMLA leave first. Suppose a staff member is penalized or fired for violating the FMLA and they later sue your company. In that case, you can rely on an honest-belief defense if the investigation into any suspected abuse is detailed.

Reward Employees

Implement rules for continually rewarding productive workers who are rarely on leaves. For instance, give a bonus or other rewards based on the accomplishment of a goal (e.g., hours worked, sales made or total attendance). It might trigger employees who fail to achieve that goal due to their FMLA absences.

Relocate Employees Temporarily

If an employee needs intermittent leave, you may temporarily move them to another open position for which they are qualified, provided that work has comparable pay and benefits. Ensure the transfer or relocation is better suited to accommodating recurring leave intervals than the employee’s primary job position.

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Conclusion

The FMLA has allowed many employees to abuse their employer’s leave of absence policies. This article gave you an overview of the details you’ll need to know to take charge immediately and stop this FMLA abuse. Use the advice provided to you to prevent your employees from abusing their FMLA leave and ensure your business operates legally.

How does your company deal with FMLA abuse? Let us know in the comments below!