While most employees take leave under the Family and Medical Leave Act (“FMLA”) for legitimate qualifying reasons and use it appropriately, we all know occasionally, there are situations where employees abuse FMLA.
Take, for instance, a recent case where an employee who worked for the State of Georgia notified her employer in October of 2020 that she was pregnant. After announcing she had given birth in May 2021, the “child’s father” (who turned out not to exist) contacted the employer requesting leave for the employee to recuperate from the delivery, and as a result, her employer gave her seven weeks of paid leave. The State later learned that a co-worker had witnessed the employee’s false stomach “come away” from her body. The employee also sent photos of the new baby to co-workers, but with one major problem: the pictures appeared to depict different children. The Georgia Office of the Inspector General interviewed the employee about her pregnancy, and shortly thereafter the employee resigned. Now, not only is this employee out of a job, but she was also charged with three felony counts of False Statements and one felony count of Identity Fraud.
A faked pregnancy to get paid leave is undoubtedly an FMLA abuse outlier. Typically, FMLA abuse is more subtle. Sometimes FMLA abuse occurs when an employee takes more intermittent leave than their original medical certification called for. Other times abuse can happen when the employee has a pattern of taking intermittent FMLA leave on Mondays or Fridays. Employees also post pictures of themselves on social media showing them on a beach, enjoying a round of golf, or engaging in other activity that appears contradictory to the medical necessity for FMLA leave.
If an employer has a good faith belief that an employee is abusing FMLA leave, employers should be reminded of the following best practices.
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- Employer Policies. Review employee handbooks and other policies to ensure that your company has a policy prohibiting dishonesty, generally, and/or FMLA abuse, specifically. Employers should apply these policies consistently. In the alternative, look at the form signed by the employee which requests FMLA leave. Did the employee acknowledge that the information was truthful and correct?
- Investigate. Review the employee’s request for FMLA and any associated medical documentation. Look at the employee’s attendance records. Are there any actual discrepancies between the two? Look at the timing of the request, does it coincide with Spring Break. If a co-worker reports suspicious or inconsistent information – follow-up. Get details from the co-worker and try to identify any other witnesses who can shed light on the situation.
- Speak with the Employee. Have a candid conversation with the employee to understand the full picture, but be sure to exercise caution. Taking an accusatory tone or implying discipline could result in an FMLA retaliation claim. Take the opportunity to communicate expectations about call-in procedures, if needed, or review the employer’s FMLA policy with the employee.
- Recertification. If the investigation casts doubt on whether the employee’s original reason for FMLA is still valid, the employer may be able to request recertification. Perhaps the employee’s condition has worsened, necessitating more days of leave per week than originally needed. Maybe the converse is true, and the employee no longer has a qualifying need for FMLA. Examine the recertification and make any necessary adjustments, such as documenting any necessary additional days of intermittent leave or notifying the employee that they are no longer qualified for FMLA.
Whatever you decide to do, don’t make any decisions until you have all the facts.
Bottom Line
While employers should not allow suspected FMLA abuse to continue unchecked, a healthy dose of caution will go a long way. What may appear to be FMLA abuse in some situations, could be an acceptable use in others. Conduct an investigation, talk to the employee, and seek recertification when appropriate. It may be nothing, or it could be a faked pregnancy warranting disciplinary action.