Key Takeaways:

  • FMLA abuse often stems from intermittent leave, which is challenging to monitor and manage due to its lack of a defined minimum leave duration and difficulty in verifying medical conditions like migraines.
  • Employers can mitigate abuse by requiring written absence requests, enforcing call-in policies, and mandating the use of vacation time before unpaid FMLA leave.
  • Surveillance, when justified, can be a legal tool for identifying FMLA abuse, especially in cases of suspicious absence patterns or social media activity.
  • Employee education and clear communication about FMLA policies can help prevent misunderstandings and reduce abuse.
  • Collaboration with legal counsel is essential to navigate FMLA regulations while addressing abuse.

What Is FMLA Abuse?

FMLA abuse is a problem many employers face. They feel it is difficult to stop because there are so many laws which protect employee rights. The biggest culprit seems to be intermittent leave.

66 percent of Human Resource professionals said they were having problems with chronic abuse of intermittent leave. Even worse, 80 percent of them reported that their biggest challenge was administering and tracking this particular type of leave.

Intermittent leave is when employees take leave for one specific reason that qualifies for FMLA, but instead of taking it all at one time, they spread the leave throughout different periods of time. A lot of employers hesitate to pursue workers even when they are blatant about abusing their leave, just because FMLA is a tricky issue to handle.

The two main problems are:

  • FMLA regulations don't specify a minimum amount of time that employees can take for intermittent leave.
  • The medical conditions that are most often associated with intermittent leave can be difficult to prove, as with migraines.

When employees at a company have to frequently cover for co-workers that are abusing FMLA, it can take a significant toll on both productivity and morale.

Common Examples of FMLA Abuse

FMLA abuse often manifests in various ways, such as:

  • Employees consistently taking leave on Fridays or Mondays to extend weekends.
  • Misrepresentation of medical conditions, sometimes supported by lenient healthcare providers.
  • Using FMLA leave for personal errands, vacations, or non-FMLA-related issues.
    Employers must be vigilant about patterns and discrepancies while respecting employee privacy.

Ways to Stop FMLA Abuse

There are steps employers can take which can greatly reduce, or even completely eradicate FMLA Abuse.

  • Seek alternatives — If employees are saying issues in the workplace are making them ill enough to require leave, check to see if there might be resolutions. For instance, those who are suffering from migraines may benefit from work areas that are fragrance-free, replacing fluorescent lighting with something more work-friendly, or something as simple as a noise-canceling headset.
  • Paperwork — Require employees to fill out absence request forms. Having to request the leave in a written request is often enough to act as a deterrent to excessive absences. This also has the added benefit of allowing HR and supervisors to track leave when investigating FMLA abuse.
  • Require Call-In — Employers may insist that regular call-in policy apply to FMLA leave. Barring extraordinary circumstances, a company could deny employees FMLA leave if they do not call in sick. Many people will hesitate to abuse their FMLA privileges once they know they are required to call every single day they are off work.
  • Vacation time first — Regulations stipulate that FMLA leave is taken without pay. Employers are allowed to require their employees use all of their paid leave before starting unpaid FMLA leave.

Strengthening FMLA Leave Management

Implementing robust management practices can significantly reduce FMLA abuse. Consider the following:

  • Regular Policy Audits: Ensure FMLA policies are up-to-date and clearly communicated to employees.
  • Training Supervisors: Equip managers with the knowledge to identify and handle potential abuse cases.
  • Leveraging Technology: Use leave management software to monitor patterns, automate leave tracking, and generate reports.
    These steps not only deter misuse but also enhance transparency and fairness in administering FMLA leave.

Surveillance Can Uncover FMLA Abuse

Courts have upheld the idea that employers who have good reason to believe an employee is guilty of FMLA abuse have every right to place that employee under surveillance, including hiring a third party to provide audio-free videotape of any activity the employee performs in public.

However, employers may need to show substantial grounds for suspicion before doing so, such as:

  • Absence patterns — when employees are often absent on days that extend their scheduled time off.
  • Longer absences — when employees are absent more frequently and for longer periods of time than are expected for their condition.
  • Sightings — when employees are spotted in places, either in person or on social media, which indicate they weren't actually ill.

Ethical Considerations and Legal Compliance in Surveillance

While surveillance is a valid method to address suspected FMLA abuse, it must be conducted ethically and within legal boundaries.

  • Obtain Legal Advice: Employers should consult legal counsel before initiating surveillance to ensure compliance with privacy laws.
  • Notify Employees: Include a general surveillance policy in the employee handbook to avoid claims of invasion of privacy.
  • Document Findings: Maintain thorough records to substantiate any claims of FMLA abuse.

What Co-Workers Notice

Resentment will often build up among co-workers who are frequently required to do extra work due to employees taking unnecessary leave. They will have no compunction about reporting to supervisors when coming across the guilty party out and about town, or on social media, looking perfectly healthy.

Fostering a Fair Workplace Culture

FMLA abuse can create resentment among employees who cover for absent colleagues. To foster a fair workplace:

  • Promote open communication and provide avenues for employees to voice concerns.
  • Recognize and reward employees who take on extra responsibilities due to others’ leave.
    This approach encourages a collaborative environment while reducing the potential for internal conflict.

Avoid Snap Judgments

Employers do need to proceed with care, and make sure they understand the laws governing FMLA abuse completely.

For instance, employees who are the primary caregiver for an ill family member may request leave to attend to them even when it has absolutely nothing to do with medical reasons. The responsibilities of care are not limited to any specific location, nor do they have to be related to medical treatment.

Employees are even allowed to use FMLA leave to simply go on vacation with the invalid, in order to attend to the usual necessary nutritional, hygienic, and basic medical needs.

Although employers need to walk a careful line when dealing with FMLA abuse, there are steps which can be taken to alleviate the problem. The key factors for success are:

  • Make sure someone in the company completely understands the finer details of FMLA regulations.
  • Be thorough, rather than hasty in dealing with the problem.

While it is true employee rights are well-protected, employers do have legal recourse when addressing FMLA abuse, as long as they have strong evidence to support their claims.

FAQ Section:

  1. What is considered FMLA abuse?
    FMLA abuse refers to situations where employees misuse their leave entitlements, often by taking leave for non-FMLA purposes or providing false information about their condition.
  2. How can employers reduce FMLA abuse?
    Employers can reduce abuse by enforcing strict documentation policies, conducting regular training for supervisors, and leveraging leave management software to track usage patterns.
  3. Can employers deny FMLA leave for non-compliance with policies?
    Yes, employers can deny FMLA leave if employees fail to follow established policies, such as submitting required documentation or adhering to call-in procedures.
  4. Is surveillance legal for addressing suspected FMLA abuse?
    Surveillance is legal if conducted ethically and within the bounds of privacy laws. Employers should consult legal counsel and document all findings appropriately.
  5. What role does workplace culture play in preventing FMLA abuse?
    A positive workplace culture that encourages accountability and fairness can reduce resentment and discourage employees from exploiting FMLA leave.

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