Sadly, abuse of the Family and Medical Leave Act (FMLA) does happen. When businesses do discover it, the cases often wind up in court, where the business can only win if it can demonstrate that it carefully documented the leave, conducted a thorough investigation, and was able to prove beyond a reasonable doubt that the abuse had taken place.
While employee rights are strongly protected, employers can take legal action to address abuse of the FMLA if they can produce sufficient evidence to support their claims. Workforce management software and the right approach will minimize your concerns regarding FMLA abuse situations.
What Is FMLA Abuse?
FMLA abuse refers to the practice of employees abusing their right to unpaid absence under the Family and Medical Absence Act. It is often difficult to fire an employee since their rights are governed by so many regulations.
The Family and Medical Leave Act (FMLA) allows certain workers up to 12 weeks of unpaid leave annually, with employers offering health benefits. Intermittent leave is the primary cause of FMLA abuse, and businesses often hesitate to prosecute abusers.
There are two primary problems here:
- Employees have a right to intermittent leave under the FMLA for a limitless period.
- It can be difficult to substantiate the medical conditions like migraines that are most commonly associated with intermittent leave.
Employees who frequently cover for others during unpaid leave may develop resentment towards those they are responsible for. They are willing to inform their supervisors if they notice the accountable party on social media or in public. This hostility may affect the employee’s output, ability development, and job happiness.
Expose FMLA Abuse
Courts have maintained that employers who have reasonable suspicion that an employee has violated the FMLA are free to observe the employee, even hiring a third party to film the employee’s every move on an audio-free video recording.
However, you might need to present strong grounds for suspicion before doing so, such as:
Displaying Absence Patterns
Employees routinely miss more work than their allotted days off.
Taking Longer Absences
Considering their conditions, employees take longer and more frequent leaves of absence.
Absence of Friday and Monday
Known as the Friday and Monday absence Act, misuse of the FMLA may be indicated by employees taking absence because they object to new tasks assigned to them or by their repeated requests for Friday or Monday off. It is impossible to suspect that these activities amount to abuse of absence. Rather, you have to determine if the worker is protected by the FMLA and whether the time off was authorized.
Changing Medical Certificates
Making up a diagnosis or manipulating a certificate of medical status to take time off or go beyond what the physician prescribed. This is a fraud, which is grounds for firing the employee since it goes beyond abuse.
Carrying Out Similar Tasks at Another Job
Carrying out the same tasks at a different job while on FMLA or CFRAP leave (indicating that the worker is capable of completing the necessary job responsibilities and may not be eligible for the leave). But exercise caution—there can be other characteristics that don’t provide enough evidence to conclude that the worker is abusing the system.
Recertifying Leaves Taken
You have received information that casts doubt on the employee’s stated reason for the absence or the validity of the certification in light of materially altered circumstances (such as increased length or frequency of absences).
Not Providing Certifications or Recertifications
If a person does not provide a certification or recertification noting the relevant conditions and circumstances within a reasonable amount of time.
How To Stop Abuse Of The FMLA
Giving the idea that you are keeping an eye on abusers will encourage them to stop. Sending this message can be aided by obtaining medical certifications and credentials for serious diseases and by having deliberate discussions with employees who might be misusing FMLA time off.
There are steps you can take to significantly lessen or even stop FMLA abuse.
Look for alternatives.
If employees report that issues at work are making them unwell enough to require time off, look into potential solutions. For example, people with migraines might benefit from scent-free workspaces, switching out fluorescent lights for more productive ones, or even something as simple as noise-canceling headphones.
Request Documentation
Require workers to fill out forms to obtain time off. Requiring a documented request for leave is often sufficient to prevent excessive absences. This can also give supervisors and HR staff access to leave records for investigating FMLA abuse.
Require Call-ins
You have the right to demand that the usual call-in procedure apply to FMLA leave. Unless there are exceptional circumstances, employers may refuse FMLA leave to workers who fail to report sick to work. People are less likely to abuse their FMLA rights once they are aware that they must call each day they are off from work.
Finish Your Vacation Time First
FMLA leaves have to be taken without pay, per the rules. Before starting unpaid FMLA leave, employers are allowed to require that their employees use up all of their paid time off.
Have a Conversation With Staff
Confronting staff members you believe are misusing their leave would be beneficial. Review the FMLA regulations, restate the requirements for making a call, and set expectations for the information the employee will supply.
Examine Workers
Problems relating to FMLA abuse should be identified and forwarded to your HR department or an attorney for further investigation.
First, you should investigate the situation and have a conversation with the person who may be abusing FMLA leave. Let’s say an employee violates the FMLA, gets punished or fired, and then sues your business. If the inquiry into any potential abuse is thorough, then you can depend on an honest-belief defense.
Reward Workers
Establish guidelines for consistently rewarding productive employees who take few vacation days. Give out bonuses or other awards, for example, the achievement of a target (e.g., hours worked, sales earned, or total attendance). Employees who fall short of that objective as a result of their FMLA absences may be triggered.
Temporary Employee Relocation
If an employee needs intermittent leave, you can temporarily transfer them to a suitable available position if it offers similar salary and benefits. Make sure the transfer or relocation will allow for periodic leave periods more easily than the employee’s current position.
FMLA Abuse: FAQs
Which rules apply to FMLA?
If an employee has worked for their employer for a minimum of 12 months, put in at least 1,250 hours in the previous 12 months, and is employed within 75 miles of a site where the company employs 50 or more people, they are entitled for leave.
Does California pay for FMLA?
The FMLA, or Family and Medical Leave Act, may also be familiar to you. A federal statute known as the FMLA safeguards employment while workers are on approved leave for certain reasons. However, the FMLA does not offer paid time off to employees, in contrast to paid family leave.
How does Texas’ FMLA operate?
If the employee is the spouse, son, daughter, parent, or closest blood relative of an honorably discharged veteran or member of the armed forces, they are entitled to up to 26 weeks of unpaid or accrued paid, job-protected leave under the Family and Medical Leave Act (FMLA) during the period to care for the veteran or service member.
FMLA Abuse: Conclusion
Many workers have been able to take advantage of their employers’ leave policies thanks to the FMLA. You now have a general understanding of the information you’ll need to take action right now and put an end to this misuse of FMLA. Make use of the guidance given to you to guarantee that your company is operating lawfully and to stop your employees from misusing their FMLA leave.
