The federal Family and Medical Leave Act of 1993 (“FMLA”) generally provides eligible employees of covered employers with up to 12 weeks of unpaid, job-protected leave in a selected 12-month period for specified family and medical reasons. Like many laws, unfortunately, the FMLA is subject to abuse. Although the FMLA has been law for 30 years, many human resource (HR) professionals and managers still struggle with workforce compliance which can expose their company to risks.
FMLA abuse occurs when employees misuse the FMLA by taking leave for purposes not covered by the law, misrepresenting medical conditions, taking excessive leave, not following FMLA rules, fraudulently requesting leave, and other wrongful means.
Leave abuse disrupts workplace production and undercuts the trust between workers and management, leading to unprofitable business results. As an employer, it is important to recognize telltale signs of FMLA abuse and take steps to ensure that this policy is being used appropriately.
Here are seven signs that FMLA abuse may be occurring in your company:
- When leave is commonly taken before or after weekends or holidays
When employees frequently request FMLA leave that extends their holidays or weekends, it may indicate they are using their leave as vacation time rather than for covered medical or family needs. - Leave requests follow soon after employee discipline
Employees may suddenly request FMLA leave after being reprimanded for a workplace rule violation to avoid further discipline that may be forthcoming. The employee may also use this fraudulent leave to find new employment. - Multiple employees using a single doctor to support FMLA absences
When numerous employees use the same doctor to provide medical certifications to support their FMLA absences, it may signal that leave abuse is occurring. If there is reason to doubt the validity of an employee’s medical certification, the employer may request a second opinion at the employer’s expense, but employer cannot regularly employ the doctor. A third opinion at the employer’s expense may then be requested if the opinions of both the employee’s and the employer’s designated health care providers differ. - Leave request offers insufficient medical documentation
An employee’s failure to provide proper medical documentation when applying for FMLA leave or submitting vague documents may indicate abuse.
- Requesting more and more intermittent leave
Under the FMLA, employees may take leave in short blocks of time to care for a qualifying health condition. This is known as intermittent leave, a valuable tool in helping workers recover from their condition. Intermittent leave also makes it easy for dishonest workers to call in sick to avoid unpleasant work, to leave work early to attend to personal matters, to look for another job, or to attend unreported secondary employment. Misusing intermittent leave is a common form of FMLA abuse to watch for. - Repeated requests to extend FMLA leave
Employees may request FMLA leave extensions for legitimate reasons, such as when more time is needed to recover from serious health conditions. Nevertheless, repeated requests for extensions may be a sign of abuse, especially if questionable medical certifications support the extensions.
- Insufficient communication during leave
Workers legitimately using FMLA leave should maintain communication with their employer to provide updates on their condition and potential return to work. A lack of these consistent updates may indicate abuse.
Although FMLA leave helps assist workers during periods of family and medical need, it can also result in abuse. Employee misuse of FMLA leave is a big challenge for employers as it may complicate their operations and increase costs. Employers should closely observe how employees use their FMLA leave to not only avoid abuse, but to promptly correct misuse when it occurs.
Employers should carefully balance the need to prevent abuse against the needs of employees who legitimately require FMLA leave. This list is designed to aid employers in preventing abuse and avoiding claims of FMLA leave interference. Employers should consult legal counsel before taking disciplinary action against an employee for leave abuse.
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