What are the most common types of FMLA abuse? Do you have employees who might be abusing the FMLA system? In a CER webinar titled "Stop FMLA/CFRA Abuse: 10 Ways Employers Are Combating Chronic Call-Ins and Fraud," Marc L. Jacuzzi, Esq., differentiated between suspected abuse versus fraudulent use of the system, and also outlined some of the most common types of FMLA/CFRA abuse.

FMLA Fraud vs. FMLA Abuse

What happens when an employee commits FMLA fraud? When an employee fraudulently obtains FMLA leave from an employer, that employee is not protected by the FMLA’s job restoration rights or the benefits of the FMLA. In other words, this employee could be terminated. FMLA fraud may include falsifying certification documents, for example.

FMLA abuse, on the other hand, occurs when an employee wrongly, improperly, or excessively uses the system. Someone may be pushing the envelope without actually committing fraud. He or she may still be entitled to leave and reinstatement.

Common Types of FMLA/CFRA Abuse

Jacuzzi outlined some common ways employees may commit FMLA abuse:

• Missing Mondays and Fridays consistently, or taking leave to extend a holiday. In this case, you can request recertification if a pattern emerges. However, you cannot assume that just because someone on leave is somewhere other than home, that they are abusing the system.
• Taking leave (regular or intermittent) at any time without actually having the underlying serious health condition as a reason. (Some employers have hired private investigators to determine what activities an employee is undertaking while on leave).
• Altering a medical certification such that leave would be allowed or extended beyond what the health care provider actually noted, such as a falsification of the diagnosis. (This actually goes beyond abuse and would be fraud, in which case termination of the employee is appropriate.)
• Working at another job with the same duties during FMLA/CFRA leave time (which shows that the employee is able to perform the essential job functions and thus perhaps does not actually qualify for the leave.) Be careful, however, as this alone may not be conclusive evidence that the employee is committing abuse, there could be further details to consider.

How Can You Curb FMLA Abuse?

With such common types of FMLA abuse, what can you do? There are several steps you can take to reduce these types of things from occurring:

1. Request certification or recertification (within your legal boundaries) when an employee takes leave. In California, however, be aware that the law differs. Jacuzzi noted that "the DOL allows you, under FMLA, to get specific information about what the condition is; here in California, the CFRA does not allow that. If you are getting any specific health information, make sure that they sign a compliant medical release form as well."
2. Require forms to be completed in full and on time in order to grant FMLA leave.
3. Require employees to take paid and unpaid leave concurrently.
4. In some cases, the employer can contact the health care provider, but only for clarification and verification, not to obtain further information.
5. Get second or third opinions of a serious health condition.
6. Track intermittent leave and regular leave on a rolling basis to prevent stacking.
7. When an employee requests intermittent leave, Jacuzzi noted, "the employee must advise you of the reasons why the leave schedule is necessary and the schedule of treatment. Under the new federal regulations, the employee must consult with you and make a reasonable effort to schedule the leave so as not to unduly disrupt operations." Take advantage of this and ensure it is part of your policy.
8. Consistently implement policies related to giving rewards to employees who are out on a leave of absence. For example, if you give a bonus or other payment based on achievement of a goal (i.e., hours worked, products sold, or perfect attendance) that the employee fails to achieve due to his/her FMLA absences, unless otherwise paid to employees on equivalent leave status for non-FMLA reasons.
9. For intermittent leave, the employer may transfer the employee temporarily to an available alternate position for which the employee is qualified provided the position has equivalent pay and benefits, and better accommodates recurring periods of leave than the employee’s regular employment position.
10. Employer may require a fitness-for-duty certification upon return.

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Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgijlaw.com). He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.