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FMLA/CFRA leaves involving cooperative employees are hassle enough, but the challenges compound when employees abuse the system, says Susan Schoenfeld, a senior legal editor for human resources and employment law publications at CER’s parent company, Business & Legal Resources.
One of the biggest frustrations for employers is trying to deal with an employee who appears to be abusing family leave, says Schoenfeld.
Fortunately, there are a number of strategies you can use to control leave abuse and fraud in your organization as a whole.
Fraud More Manageable than Abuse
Fraud actually tends to be a more manageable problem than simple abuse, Schoenfeld says. For example, employers tend to have better luck sniffing out an employee who takes a week of FMLA/CFRA leave to go an a hunting trip (fraud) than proving that one is using an already certified medical condition as an excuse to sleep in on Monday mornings (abuse).
However, you can’t demand that employee out on FMLA/CFRA stay in the house. Just because an employees are on medical leave for their own health condition doesn't mean they must be bedridden. It also doesn't mean an employee can never leave the side of the person he or she is taking care of.
So the fact that you see an on-leave employee at the grocery store doesn’t necessarily mean fraud or abuse.
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What Is Fraud?
So what is fraud, then? It is, quite simply, using family leave for reasons other than those for which it has been approved. Some examples include:
Rooting out the more subtle types of FMLA/CFRA abuse takes diligence on your part to track patterns of leave.
Employers need to keep an eye out for absences that tend to be concentrated in particular departments or with certain individuals as well as those that occur disproportionately in conjunction with weekends, holidays, or paydays.
Because evidence of a pattern of abuse is usually going to be circumstantial rather than medical, you need to track such evidence over a long enough period to demonstrate that the suspicious absences are due to more than mere coincidence.
Don’t let employees work the system. Get your fully updated, legally compliant California family leave policy in place today.
One expert suggests that you show actual calendar pages marked with big Xs to the healthcare provider and ask, “Is this a pattern of absences you would expect to see with this particular serious health condition?” When the healthcare provider sees graphically every Monday and Friday absent, you’ll usually get a “No, that’s not an expected pattern.”
In tomorrow’s CED, strategies for reducing FMLA/CFRA abuse.
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One thing to remember is that what initially seems like fraud can sometimes be an honest mistake. It's best not to immediately take an adversarial stance--it could lead to accusations of retaliation.