What to do if an Employee is Abusing FMLA

The Family and Medical Leave Act (FMLA) requires that certain employers (those with 50 or more employees) allow their eligible employees to take covered unpaid medical or caregiver leave. While FMLA can be a great tool for employers and employees alike, sometimes employees take advantage of the Act in order to avoid or minimize work. As an employer, do you know what your options are if you suspect an employee is abusing the FMLA?

Options for Preventing FMLA Abuse

Nothing prevents employers from ensuring that their employees are not abusing FMLA leave, and employees found misusing FMLA leave can be terminated for it. An employer has several options to consider when attempting to determine whether an employee is abusing his or her FMLA leave.

The first option is to interview the employee. Utilize your human resources department and review with legal counsel questions you would like to ask the employee about his or her actions on the days in question to ensure that you are not asking prohibited medical questions or requesting other protected information. An employer can also collect information on social media and talk to any witnesses who may have seen or talked to the employee on those days. Another option is to use a private investigator to follow and document an employee’s actions on the days requested for leave. If the employee engages in activities inconsistent with his or her reasons for taking leave, it may be grounds for termination based on FMLA abuse.  Employers should be careful about investigations, however, so that they are not perceived as FMLA retaliation or interference.

A third option is medical recertification for the medical issue. Employees that take intermittent FMLA leave on suspicious days, like every Friday, or after a holiday may be required to recertify their ailment for leave. An employer is not allowed to challenge the finding of the employee’s healthcare provider but can seek a second opinion (at their cost) or at a minimum, ask the employee to have the medical issue recertified every six months to a year in order to ascertain that the employee still qualifies for leave. Employers can request a recertification every 30 days (absent some exceptions).  You can also request a recertification if circumstances have changed since the prior certification, such as major changes in the frequency of absences.

As part of recertification, an employer can also request authentication of the medical certification by the employee’s healthcare provider. This involves sending a copy of the certification to the employee’s physician and requesting verification that the recertification was authorized and signed by the doctor. If an employee fails to get recertified or if the recertification fails authentication, an employer may revoke FMLA leave or terminate the employee for FMLA abuse.

Call or Contact Our Office Today

If you suspect an employee is abusing FMLA leave, you can learn more about your options by speaking with the Dallas employment lawyers at Simon Paschal PLLC.  Call (972) 893-9340 to speak with Dustin Paschal or Paul Simon today.

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