FMLA fraud can be two types:
1. Using real, approved, FMLA leave for non-FMLA purposes.
2. Misrepresenting the medical condition in question, such as altering the medical documentation. (The employee could be misrepresenting their [or family member] condition to employer or to the medical professional).
Handling Suspected FMLA Fraud: What Can an Employer Do?
In the context of intermittent leave, what can an employer do when fraud is suspected?
You have the right, as an employer, to investigate instances in which you have some sort of honest suspicion that employee is abusing or using FMLA leave fraudulently—particularly intermittent leave.” This honest suspicion standard is really intended to protect the employer against a claim that they are interfering with FMLA leave and/or being retaliatory. An employer may receive information from a supervisor’s observations, a co-employee, or even from a third party that leads to honest suspicion.
Here are some examples that may give rise to honest suspicion:
1. Absence patterns
2. Absences coinciding within non-work events
3. Absences that differ from the medical certification in frequency or duration
4. Sightings or reports of the employee in inappropriate places
Here are some guidelines when investigating FMLA absences for suspected fraud:
1. Ensure that the suspicion was reasonable. Can you explain what gave rise to the suspicion of abuse or fraud?
2. Use a qualified professional for surveillance if needed. They will be more objective and will not look as retaliatory later (as it may look if people within the company trailed others).
3. When questioning absence patterns look over a long-time period and compare with other employees. If something is a real pattern, it needs to happen over an extended period of time to be truly suspicious. Ensure that the questionable pattern is really an anomaly from what other employees routinely take.
4. Review the medical certification. See if the absences are consistent with what the healthcare provider said to expect.
5. Confront the employee, explain what you have discovered, and take the very important step of giving them an opportunity to explain.
For more information on FMLA investigations and how they may benefit your oirganization please contact bcyr@hettrickcyr.com.