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Managing Fraudulent Use of Leave under the FMLA

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The Family and Medical Leave Act ("FMLA") provides important unpaid leave benefits to employees, but also serves as a source of frustration for employers balancing their desire to comply with the law and manage their operations efficiently. Employee requests for intermittent leave present unique and difficult challenges. In these situations, employers must work around unplanned absences due to legitimate leave requests, but must also occasionally address employees who seek fraudulent FMLA leave.

Federal courts have paved a way for employers to respond to employees who use FMLA for reasons other than the intended purpose. To that end, courts have held that an employer does not violate the non-retaliatory prohibitions of the FMLA by terminating an employee if the employer "honestly believes" that the employee has used leave for an improper non-FMLA purpose. Before taking any adverse action against an employee for fraudulent FMLA leave, employers must conduct a thorough investigation, the results of which support the employer's "honest belief" that the employee has engaged in fraudulent use of FMLA leave. Employers must not "jump to conclusions" or "make assumptions" in deciding that an employee was being dishonest about his use of FMLA leave.

The employer's investigation should include specific steps such as (1) capturing observations of employee conduct (which is inconsistent with the employee's leave request) on video and having the video reviewed by an outside medical consultant; (2) obtaining medical review of the employee's FMLA certification forms signed by the employee's doctor and the employee's job description; (3) obtaining a medical report (including an analysis of what the medical consultant observed in the video and the doctor's conclusion that the employee's observed conduct is inconsistent with the medical condition or other reason necessitating the leave); (4) interviewing the employee about his use of FMLA leave. Employers should always allow the employee the opportunity to respond to the allegations, including the opportunity to submit additional responsive information. Depending on the information provided by the employee during the investigation, the employer should consider the possibility of terminating the employee for providing false information during the employer's investigation.

There are other avenues to curb intermittent leave abuse, including requiring a medical certification to initially verify an employee's serious health condition and need for leave, and then requiring another medical certification every leave year, every time the reason for leave changes and every time there is a request for a leave extension. Employers, however, must be mindful to ensure that requests for certification will not be viewed as interference with an employee's FMLA leave. Employers should also review medical certification forms submitted for evidence of fraud. Does it appear that there are multiple different handwritings? Is there evidence that the employee completed the form? Ask the employee whether he filled out the form. Employers can also require an employee to provide a doctor's note for paid sick day substituted for FMLA (provided the employer's paid sick leave policy requires a doctor's note). Consult your legal counsel to discuss handling of these workplace challenges.

If you have questions regarding FMLA, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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