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How to Stop FMLA Fraud as Coverage Expands

Volume 2, Issue 15
August 15, 2014
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DeptLaborStampFederal and state regulatory agencies and the courts continue to expand the scope of Family Medical Leave Act protections for employees, but there are steps you can take to limit abuse of the law some employers have renamed “The Friday and Monday Leave Act.”

Most recently, the U.S. Labor Department proposed expanding FMLA coverage to same-sex spouses in legal marriages, even if their state of residence does not recognize their marriage. (President Obama earlier issued an executive order banning LGBT discrimination by government contractors and including recognition of gay marriages).

In general the FMLA allows eligible employees to take unpaid, protected leave in a wide variety of circumstances. It applies to those who have worked for a covered employer for at least 12 months (and for a certain number of hours) at a site where at least 50 employees are employed either there or within 75 miles.

In addition to spouses and minor children, the law also applies to adult children who cannot provide for their own care, even when they are married. It also can be invoked in cases involving care for a stepchild or stepparent with a serious health condition; to take exigency leave for a spouse’s military service; and to take military caregiver leave for a spouse.

A federal appeals court recently opened the door to allow leave to be taken in caring for grandchildren, but only as long as the grandparent also is caring for their own child at the same time.

A different federal appeals court also decided June 24 that an employee did not forfeit her right to FMLA leave in order to care for her seriously-ill adult daughter by failing to provide her employer with a date when she would return to work.

This decision shows the liberal construction that courts increasingly employ when it comes to the FMLA, warns attorney Patrick M. Muldowney of the law firm of Baker & Hostetler. As a result, he advises employers to err in favor of their employees when administrating leave policies.

How Employers Can Stem Fraud

Being very careful when granting the required leave is one thing, but that doesn’t mean employers need to let their employees get away with fraud, which you can actively combat in a number of ways.

Courts have ruled that it is legal for an employer to hire a private investigator in cases where fraud is suspected, but that is an expensive alternative.

Intermittent leave abuse is the top employer complaint heard by Jeffrey S. Nowak of the firm of Franczek Radelet. To tackle it successfully, he said you should start by making sure to follow up on incomplete and inadequate medical certification, use doctors’ second and third opinions, and pursue re-certification.

Also, you can use lawful means to engage the employee’s health care provider regarding the seriousness of the employee’s health condition and need for leave.“The key is to clarify, not challenge,” Nowak said. Instead, the focus should be questions such as: “We want to understand what you meant by ‘as needed’ and whether the condition affects the employee from doing her job.”

Another phrasing could be “Would you provide a better estimate than ‘leave as needed’ and “provide detail on why the condition makes it medically necessary for the employee to miss work?”

Nowak says every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.

“If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place,” he stressed.

In your FMLA policy, also make clear how employees are expected to communicate with you about the need for leave of any kind, and ask questions to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play.

“When you improve your intake process, you are in a better position to assess the need for leave and ward off FMLA abuse,” Nowak said.

He also urged employers to conduct their own FMLA audits to combat abuse and aid compliance.

“How many times have you committed yourself to actually updating your FMLA policy, forms and practices to ensure they are legally compliant?” he asks. “Now, do it!”

One reason is that Labor Department on-site audits are becoming the norm, and the DOL’s chief of FMLA compliance called 2014 a pivotal year for audits and enforcement. “I speak from personal experience that our DOL friends are looking for (and expecting) compliant policies, forms and practices,” Nowak said. “A small investment now will save you even more money down the road,”

The next issue of ACWI Advance will outline how to prepare for a Labor Department FMLA audit.

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