FMLA Compliance: Tools to Curb Abuse and Protect Your Business

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Heather Ptasznik: Hello everyone, and welcome to today’s episode. I am Heather Ptasznik, a shareholder with Ogletree Deakins in the Detroit metro area, Michigan. I focus my practice on employment law, and I spend much of my day working with employers through their human resources teams and in-house counsel on the practical day-to-day issues that arise under the Family and Medical Leave Act. One of the biggest challenges I have seen employers face is handling intermittent FMLA leave and more specifically, how to recognize and address potential abuse. Now, don’t get me wrong, the FMLA is an incredibly important protection for employees who need time off for serious health conditions or to care for loved ones, but the reality is some employees take advantage of it, and when that happens, it’s not only disruptive to business operations, but it can hurt morale among co-workers who are playing by the rules.
Today, we are going to talk about some of the key rules, talk about the red flags for abuse, and explore some tools that employers can use. By the end of this episode, I hope that you will walk away with some strategies to keep your policy strong, consistent, and legally defensible. So, let’s just start with the FMLA basics. The FMLA provides eligible employees up to 12 weeks of unpaid leave in a 12-month period. That leave can be used continuously, for example, when someone is out for surgery and recovery, or the 12 weeks can also be used intermittently, which means smaller blocks of time taken for the same medical reason. Eligibility also requires two things, that the employee be employed at least 12 months with the company, and at least 1,250 hours were worked in the prior 12-month period. What’s really important here is the definition of intermittent or reduced schedule leave.
Intermittent leave allows employees to take time off in separate blocks for a single qualifying condition. This is usually a few hours or maybe a full day at a time, not always consecutive. Reduced leave or reduced schedule leave allows employees to work fewer hours per day or week. This might be where someone is returning after surgery and can only work three hours a day instead of an eight-hour workday. Or maybe someone is undergoing chemotherapy and works three days a week instead of five days a week due to fatigue, or maybe where a parent works a shorter workday so that they can take their child to regular physical therapy appointments. Both intermittent and reduced schedule leave can be taken when caring for yourself or a close family member, as well as for service member leave under the FMLA. But as you probably guessed, this flexibility is also what makes intermittent leave the most difficult to manage.
So, how do you know when someone might be stretching the rules? HR professionals often cite FMLA abuse as one of their greatest headaches. These abuses undermine trust amongst supervisors and employees and even amongst co-employees, and this can significantly disrupt operations. So, recognizing these patterns is the first step toward controlling misuse. So, where have we seen intermittent leave abuse? Employees who have a second job and utilize FMLA to perform services for the second employer or maybe self-employment, or maybe even to try out an alternative job. Using FMLA for personal activities such as shopping or moving, employees who go on vacation or enjoy other social activities, the Friday-Monday absences or to extend holiday weekends or to extend a vacation. Or using FMLA when a request for PTO was denied, also to avoid a job assignment if an employee doesn’t like where they’ve been assigned to work for the day.
So, let me give you three quick stories. First, Mark. He asked for four weeks of continuous leave to care for his mother with dementia. Two weeks into his leave, he posted pictures of himself at the Grand Ole Opry. Human resources became aware of the photos and tried to rationalize it, thinking maybe he took his mother with him, but the next day, Mark posted more pictures, and it was clear that his mother was not there with him. As an employer, what do you do? You can’t jump to conclusions, but you also can’t ignore what might be a clear sign of abuse. Next, Maria. She had a certification for depression and requested time off during the holidays. Her vacation request during the holidays was denied because there wasn’t enough coverage. Ironically, on those same days, she subsequently called out under FMLA, citing her depression, that the holidays were making her sad, and she would be out the remainder of the week.
Maybe it’s legitimate, maybe it’s not, but the timing raises eyebrows. And then there’s Amy. Amy suffers from migraines with certification allowing her up to three days per month to use interim in FMLA, but she’s been regularly calling in 15 minutes before her shift starts, despite policy requiring one hour’s notice. Most of her absences, they take place on Fridays and Mondays. This isn’t just about medical leave; it’s about failure to follow procedure. So, what is the common thread here? Patterns, timing, consistency. These are all clues that employers should never ignore. So, what can employers do? Let’s talk about the tools for your tool belt. First, call out policies. Your policies should clearly state who the employee is to call, when to call, and how to call. For example, maybe no texts or no voicemails, and employees must speak directly to a manager or HR about the absence.
Require notice at least one hour before a shift unless it’s truly impossible. And if the absence is open-ended, the employee hasn’t provided you with sufficient information in the initial call, then require the employee to call every day. Remember though, employees should be notified at the commencement of FMLA as to the proper process for calling out, and that they must give sufficient information to enable the employer to determine whether the absence is for an FMLA reason. Most importantly, remember to enforce the rules consistently with respect to call out policies. If you apply them only to FMLA absences and not other types of absences, you may be potentially opening yourself up to claims of interference. Second, the healthcare certification forms. The Department of Labor has standardized forms available on their website to be used in connection with FMLA leave and administration, and they are powerful tools. If a certification is incomplete, you can send it back to the employee and let them know in writing that they have seven days to fix it.
You also need to let the employee know the consequences if they fail to return the completed form. If the employee refuses, you can deny or delay leave. You also have the right to clarify or authenticate the form. You cannot ask the healthcare provider for additional information. However, you can ask them to clarify or authenticate the certification form. You cannot collect new information, but questions you can ask are things like, “Was this document completed by your office?” If you have doubt regarding the authenticity of the signature. You can ask the healthcare provider to clarify what something says if you can’t read the healthcare provider’s writing. If a question is not completed, you can ask them to answer a specific question, or if it is ambiguous, you can ask them to clarify. This is not like the ADA interactive process, and you’re much more limited here as to what information you can obtain from the healthcare provider.
Third, you can ask employees to renew or re-certify their healthcare provider forms. You can require updated certifications every 30 days in connection with an absence and every 12 months for ongoing conditions. There are some exceptions to the timing rules. For example, an employer may request recertification sooner than 30 days if the employee requests an extension of FMLA leave, if circumstances from the original certification have changed significantly, for example, if the duration or frequency of the absences are different, or if the nature or severity of the illness has changed, or if there are complications. Or if the employer receives information that casts doubt on the employee’s reason for leave. Fourth, the employee may be required to get a second medical certification if the employer has reason to doubt the validity of a complete and sufficient certification. The employee would be provisionally entitled to FMLA leave while waiting for the second or a third opinion.
The employer can choose the healthcare provider to provide the second opinion, but generally, you may not select a healthcare provider whom you employ on a regular basis. So, for example, if you send an employee to a clinic, specific clinic for a worker’s comp injury treatment, don’t send the employees here. If the second opinion conflicts with the first opinion, then you can move to a third jointly agreed upon provider whose decision is binding, and it is the employer who is responsible for paying for the second and third opinions. Finally, surveillance. So, you all have your day jobs in human resources or legal, but I often hear about human resources or legal putting on their detective hats and scrolling through social media sites to see what employees are doing while on FMLA leave, because sometimes you have a hunch. Surveillance is a tool that can be used.
Surveillance and private investigators, however, are not tools to be used lightly. Surveillance must always be conducted lawfully, for example, by using a licensed investigator, and should be after the employer has developed a reasonable suspicion of misuse. Surveillance is not a phishing expedition, but can be utilized as a compliance safeguard. So, when might an employer turn to surveillance? Patterns like repeated Friday or Monday absences, social media posts showing vacations during supposed times of incapacity or inconsistent medical evidence can create legitimate doubts. In those situations, surveillance can be useful to provide objective evidence to confirm or disprove suspicions. The key again is that these methods are applied consistently, documented carefully, and paired with other compliance steps like certifications, re-certifications, and call-in policies. Surveillance alone should not be the first step, and it’s one part of a broader compliance strategy. So, some final thoughts. What’s the takeaway? First, certification forms are your friend, use them. Don’t accept incomplete paperwork.
Second, track attendance and patterns consistently, keep track of the FMLA designation dates. Third, train your managers. They are the boots on the ground. They’re often the first to see red flags. Train them and ensure that they are communicating with human resources about what they’re seeing. Fourth, don’t be afraid to investigate including surveillance, but always do so lawfully. And finally, make sure your policies are clear, your procedures are consistent, and your enforcement is fair. The FMLA is here to protect employees who truly need it, and that’s critical, but it’s also there to be balanced with the needs of the business. Employers who strike that balance with fairness and documentation are in the strongest legal position. That wraps up today’s episode on managing intermittent FMLA leave and preventing abuse. I’m Heather Ptasznik with Ogletree Deakins and thank you for spending this time with me to talk about one of my favorite topics. If you found this helpful, stay tuned for future episodes where we will continue tackling the most pressing employment law issues facing employers today. Until next time. Take care and thank you for listening.

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