Do you have that employee who takes intermittent Family Medical Leave Act (FMLA) leave and is usually out on Mondays and Fridays?  What about the employee on an extended FMLA leave who is going to school full-time?  Is it possible for employers to verify FMLA abuse and prevent it?  Although FMLA leave is highly protected by a complicated statutory and regulatory scheme, there are ways for employers to handle FMLA misuse and fraud without violating the employee’s rights.

It is paramount that employers provide standard notice to all employees of their FMLA rights.  This includes general notice posted in conspicuous places, timely and proper notice to employees who may be eligible for FMLA leave, rights and responsibilities notice, and the designation of leave notice.  The most relevant notice in preventing fraud and abuse is the rights and responsibilities.  The federal regulations specifically require employers to provide “written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.”

Oftentimes, employers do not include expectations and consequences in their FMLA policies.  A policy statement FMLA misuse, abuse or fraud will result in discipline, including termination, provides a significant benefit to employers.  In 2011, the United States Ninth Circuit Court of Appeals considered an employee’s appeal following his termination for FMLA misuse.  Although Boecken v. Gallo Glass Company is not published, it provides insight for employers as to how a court may decide similar issues.  The employee claimed his termination was not lawful because his employer did not provide adequate notice of which activities were not acceptable during FMLA leave.  The court disagreed with the employee, stating there is no requirement for employers to identify each and every unacceptable use of FMLA leave, but the employer is obligated to identify the consequences of FMLA misuse and fraud.

In the Boecken case, the employer had a progressive discipline policy but immediately terminated the employee for dishonesty related to the FMLA misuse.  The court determined a dispute existed between the employer and employee regarding adequate notice of the consequences for FMLA misuse.  Although no employer is guaranteed protection from litigation, this employer might have been in a better position if it had a written policy describing the consequences of FMLA misuse.

Beyond the notices to employees, employers can further prevent and detect FMLA fraud and misuse by consistently and diligently requiring employees provide complete and sufficient certification for the leave.  For an employee on leave for his own serious health condition, employers are legally required to request the medical certification and evaluate the content.

How do you know the certification is complete and sufficient?  According to the U.S. Department of Labor, certification is incomplete if one or more of the applicable entries on the form is not completed, and it is insufficient if the information is “vague, unclear, or nonresponsive.”

What if you have complete and sufficient information, but the employee is likely abusing, misusing, or committing fraud in connection with the FMLA leave.  What steps can the employer take at this junction?  If the certification is in doubt, the employer may require the employee to obtain a second opinion from a health care provider chosen by the employer, and possibly a third chosen jointly by the employee and employer if the first and second opinions are conflicting.

What happens if you suspect fraud but did not ask for a second opinion?  The employer can still take steps to determine fraud or misuse without obtaining a second opinion.  In a U.S. Court of Appeals decision from the mid-west, the employer did not ask for a second opinion, but the court nonetheless agreed the employer rightfully terminated the employee for FMLA fraud.  The employee was on a second round of intermittent FMLA leave when co-workers found pictures of her on Facebook attending a local festival.  The next work day, the employee called in to use her FMLA leave.  The employee’s defense was that no one told her attending the festival was prohibited.  She also could not explain the discrepancy between her eight hour trip to the festival and her subsequent and immediate incapacitation that prevented her from reporting to work.

If you still suspect fraud or misuse but there is no clear evidence to contradict the employee’s claim, employers are entitled to request recertification of the serious health condition every 30 days, which must be paid for by the employee.  However, the employer cannot ask for second or third opinions on recertification.

Another tool to combat FMLA fraud and misuse is a private investigator.  However, hiring a private investigator to surveil an employee should be considered as a last resort.  Another Court of Appeals decision held that it is not unlawful for an employer to hire an investigator to determine whether FMLA leave fraud or misuse has occurred.  In that case, the employee’s husband owned a lawnmower business.  When the employee was observed mowing lawns on an FMLA leave day, the employer terminated her.  The court found the termination was justified under the circumstances because the employer had an “honest suspicion” or “honest belief” the employee’s leave was fraudulent.

It is important for employers to understand they are not hostages to the FMLA.  When an employer suspects abuse, it has the right to ferret out the fraud as long as it operates within the parameters of the FMLA’s legal requirements.