Fraudulent Leave Prevention is Not Just for Large Employers!

Good Advice on Preventing FMLA Fraud & Abuse.

Jeff Nowak is an expert on the Family and Medical Leave Act (“FMLA”).  The Federal FMLA applies to public agencies to private sector employers with at least 50 employees (plus additional qualification requirements).

Jeff recently wrote an article containing excellent recommendations on how employers can prevent employees from fraudulently using FMLA leave.

See: Employees Busted Taking FMLA Leave for a Caribbean “Booze” Cruise, Yet Another Reminder Leave Abuse is Alive and Well

Tailoring the Good Advice for Small Employers.

I think smaller employers can and should use many of Jeff’s tips.  In my experience, smaller employers are disproportionately harmed by the impact or each act of fraud.

I encourage each employer to use the following sorts of procedures taken from Jeff’s list:

1. Prepare a list of probative questions you ask all employees when they request time off. Employers, you have the right to know why your employee can’t come to work! So, prepare a list of questions that you ask your employees when they call in an absence. These will help you better determine whether FMLA is in play and if the request might be fraudulent:

– What is the reason for the absence?

– What essential functions of the job can they not perform?

– Will the employee see a health care provider for the injury/illness?

– Have they previously taken leave for this condition? If so, when?

– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?

– When do they expect to return to work?

2. Enforce call-in procedures.Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.

As (Jeff) referenced in a recent blog post, you should consider aligning your FMLA call-in policies with your regular PTO policies.

3. Discuss with the Employee Your Expectations During Leave.When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave.

4. Have Employee Complete a Personal Certification. Upon return from any leave of absence (FMLA or otherwise), ask the employee to complete a personal certification asking them to confirm that they actually took leave for the reason provided.  The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. 

5. Follow up on Patterns of Absences.Monday/Friday absences. Taking days off around a holiday to extend time off. These situations smack of FMLA abuse.

6. Scheduling Medical treatment Around Your Operations.Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.

7. Conduct a comprehensive audit of your FMLA practices.Work with your employment counsel to ensure that your FMLA policy and forms are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

Conclusion.

Many regulations such as the FMLA are designed for medium & large employers.  These employers in turn use experts to figure out how to comply with the regulations.  Small employers should take advantage of the homework for which the larger employers have already paid!

Michael Oswald

michael@msochartered.com

www.msochartered.com

Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.

© 2019 Michael S. Oswald

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