Fight FMLA Fraud: A 10-Step Program

Interested in combating potential Family & Medical Leave Act fraud? What employer isn't? The best way to keep employees from gaming FMLA leave is to use the law's medical certification process.

FMLA gives you the right to obtain information from the employee's physician about the ailment and (at least for the first certification) to obtain a second or third opinion from an independent physician.

To make sure employees take only FMLA leave to which they are entitled, follow these 10 steps:

  1. Obtain a medical certification for each request for leave due to a serious health condition. It's important that your sick leave or attendance policy require a doctor's certification for all absences of three or more days for the leave to be excused. If there's no such requirement and you intend to require paid leave to run concurrent with FMLA leave, you might not be able to require a medical certification, which is the first step in an anti-fraud program.

  2. Enforce a policy denying the leave request if an employee fails to submit certification within 15 days. In each instance, assess any appropriate penalties for failure to be at work.

  3. Examine the certification closely to ensure it's been properly and fully completed. If the medical certification is incomplete, specify in writing what information is lacking and allow the employee at least seven days to cure the deficiency. If the employee fails to do so, deny the leave request. If the medical certification doesn't support the existence of a serious health condition, obviously you should deny the request.

  4. Require a second opinion if the circumstances are even slightly suspicious.

  5. Once the certification is approved, make a limited inquiry each time the employee requests more leave, particularly in the case of intermittent FMLA leave. Is this leave related to the original qualifying reason?

  6. Watch the schedule of absences closely in cases of intermittent leave to determine whether a suspicious pattern develops (e.g. immediately before and after weekends or days off) or whether there's a change in the frequency or timing. Such actions could suggest a change in condition that enables you to request a recertification.

  7. Request recertification as often as the law allows. The frequency of recertification permitted will differ depending on the type of leave and the type of serious health condition.

  8. Require accrued leave to run concurrently with FMLA leave when allowed by law. When an employee realizes that taking leave today will affect future vacation time, he or she is more likely to take FMLA only when the need is legitimate.

  9. Ask the physician to verify that the medical certification is exactly as he or she signed it and has not been altered.

  10. Aggressively pursue potential fraud, and if concrete evidence of fraud is discovered, take appropriate disciplinary action. Always follow up on tips from fellow employees or other sources that the employee does not, in fact, need leave.