This Wisdom of the Crowd, compiled from responses posted on the Employment & Labor Committee eGroup,* addresses issues regarding potential abuse of the Family and Medical Leave Act ("FMLA"). The issues discussed include:
I. Resources Employers Can Use to Prevent FMLA Abuse II. Solutions for Employers when Repeated Instances of FMLA Abuse Arises in the Future
*(Permission was received from the ACC members quoted below prior to publishing their eGroup comments in this Wisdom of the Crowd resource.)
RESOURCES EMPLOYERS CAN USE TO PREVENT FMLA ABUSE
Question:
An employee verbally requested personal leave for four weeks, but was denied because of production needs. Magically, he provided FMLA paperwork (correctly completed), covering the same period of time, for his parents who are residents in a foreign country. So, allegedly, the person will take time off, travel to the foreign country and provide care to the parents. In this circumstance, what recourse, if any, does the employer have to prevent abuse?
Wisdom of the Crowd
- Response #1
An aggressive employer here can do a few things.
(1) [R]equire weekly certification of the medical condition and the need for care, as well as certification from the employee that he/she is the only person providing the care and that the employee's presence continues to be necessary. If the employee is fudging the paperwork and has a sympathetic foreign doctor, he'll probably be able to comply, but it's worth making him jump through the hoops.
(2) [C]harge the time as paid vacation/personal days [i]f the company has a policy that allows you to require employees on FMLA leave to burn available paid time off[.] [T]his way [when] the employee comes back to work[, he/she will have] [...] no vacation time left for the year.
(3) [M]onitor the employee's [F]acebook, [T]witter, and email to see if the employee's social media or email communications are inconsistent with the claimed need for daily care for the sick parent.1 [...]
Response #2
[...] Since the employee originally requested to use vacation, it seems to me that making him use the vacation time during the leave period would not really have the desired effect. He was already counting on not having vacation time. However, I'm wondering whether the company policy can state that all FMLA leaves are unpaid and an employee [cannot] use accrued vacation or sick time. It seems to me that if the employee knew that he was not going to have any income during that period, he might reconsider his request. I'm also curious as to whether a company policy can indicate that vacation or [Paid Time Off ("PTO")] accrual is suspended during FMLA or whether might give rise to a claim of discrimination or retaliation.2
Response #3
I'm really concerned that all of these suggestions are changes after the horse is out of the barn. The em[ploy]ee asked for vacation [and] was denied because of production needs. Em[ploy]ee [came] back with "an apparent valid FMLA endorsement" from a physician overseas. [Your concerns,] [e.g.,] [s]hort of verifying the physician is a physician, changing verification requirements to weekly, requiring a second opinion, charging it to vacation (does your [existing] FMLA Policy say - vacation [and/]or sick leave shall be charged before FMLA is unpaid) all seem to smell like FMLA retaliation to me. Besides hasn't the time for approval past?
If you start changing your FMLA procedure for this [one] individual, I think you are inviting more costs than [giving] him/her more vacation time. I've had some FMLA complaints in my career [and] the cost [and] heartache isn't worth it. I had a FMLA claim that was investigated by a DOL Wage & Hour FMLA officer. He wanted to come in [and] ask for a truckload of stuff - 90% not related to this complaint. We went [and] met with him in his office so we could use that as reason to not give him everything he might ask (we'll send it later). We showed him our policies, we showed this person's attendance [and] pay records, [and] we argued that we use[d] a rolling calendar - not calendar year (we controlled documents). Finally[,] [we] convinced him that this person had no leave left [and] had failed to return. He agreed it was a good termination [and] I asked for a "closing letter." He said "in 17 years of FMLA investigation, I have [never] [not] found a violation. I don't know what the DOL does. I will have to get with my Regional Supervisor." We [never] got a final report, closing, anything from DOL.3
Response #4
[...] [U]nder the FMLA, an employer cannot deny an employee's request to use paid time off during FMLA leave although the employer can enforce any procedural rules for the use of paid time off during this period. The employer may also force the use of paid time off that an employee has previously accrued during FMLA leave.
While I am all for employers exercising fully their options when it comes to FMLA use, nonetheless, a note of caution is necessary here about the recommendation that weekly certifications be required in this case. The default rule under the FMLA [regulations] is that recertification can be sought no more often than every 30 days. Depending on the circumstances, an employer may have to wait longer than 30 days (but in no event longer than 6 months) or may request recertification in less than 30 days. However, in the latter case, there need[s] to be demonstrable change in circumstances present, such as, the employee requests an extension of the leave, a change in frequency of the intermittent leave taken, or reasonable doubt about the need for the leave. What was described originally was a block leave to care for a family member with correctly completed paperwork. I don't see how the employer can ask for weekly certifications in this case at all. Furthermore, I don't think an employee has to tender a certification that the employee is the only person providing the care or that the employee's presence continues to be necessary. An employer doing these type[s] of things will soon be hit with litigation for interfering with FMLA leave.4
Response #5
[...] [A]n employer cannot ask for weekly FMLA certifications. Generally, the leave must be approved for the length identified in the initial certification (if the cert[ification] is otherwise supportive of the leave). Additional cert[ification]s are permissible only upon a change of circumstances justifying a request for updated medical info[rmation], and in addition the employer can ask for a recert[ification] at 6 months in all circumstances, and any time there is a request for extension of the original leave period. As you can see, there are strict rules and failure to follow them will open the employer up to interference and retaliation claims.5
Response #6
This question gets straight to an Achille[s'] [h]eel of the FMLA (which some malcontents affectionately refer to as the "Friday-Monday Leave Act") - dealing with suspected abuse.
Plainly, the law and regulations prohibit obtaining leave through fraud and an employer is allowed to make a reasonable investigation of suspected abuse. In your case, 29 CFR 825.307(f) provides that you must accept medical certifications from foreign healthcare providers when the serious health condition occurs in a foreign country. If the certifi[c]ation is unclear you can ask for clarification from the provider.
You can hire private investigators if you suspect abuse. You may be able to require a second or third medical opinion (at your cost) where the first one is not sufficient to cl[e]arly establish a serious medical condition. The same cited regulation explains all of that.
[I]f the requested leave starts before you can do all of this, you must approve provisional leave and advise the employee that you have not yet determined whether the leave qualifies for FMLA. (That may be enough to give the employee pause.)
In the end, it is the employer's burden to prove that it had an "honest belief" of FMLA abuse before denying the leave or taking adverse action. There are several cases describing this defense (e.g.[,] [see] 131 F.3d 672 and 688 F.3d 821 - both 7th Circuit decisions). But see a California case if you are in that jurisdiction that limits applicability of the Honest Belief defense under California's state FMLA law - [Richey v. AutoNation], decided on November 13, 2012. The 7th Circuit seems to allow an employer to be wrong so long as it had an honest belief that there was fraud.
But you will be trying to prove after the fact that even though you were wrong, you were justified in your belief at the time, so be sure to have documentation of your decision process.
Based on the limited facts in your inquiry, my opinion is that you would need to do more investigation to know whether the person is actually fraudulently claiming leave, but the information you do have would clearly supports further inquiry.6
SOLUTIONS FOR EMPLOYERS WHEN REPEATED INSTANCES OF FMLA ABUSE ARISES IN THE FUTURE
Question:
The employer suspects that the foreign physician is "pencil whipping" the paperwork, but does not have an effective method of holding the physician accountable. What recourse does the employer have if the pattern repeats itself (i.e., failed requests for vacation followed by completed FMLA paperwork) during subsequent periods of potential FMLA eligibility?
Wisdom of the Crowd
- Response #1
I would use this incident as a good time to go back [and] look at your FMLA policies[.] [You should focus on issues such as] what [your FMLA policies] say, how you handle requests, do you track usages, do you ask for [second] opinions, [and] make sure your supervisors [and] HR are all following the same rule book [...] (Self audits are revealing). Close the barn door before more em[ploy]ees hear/see what he/she has done [and] play the same scheme.7
Response #2
As to your second question, it depends on the employer's policies. If the employer has a policy that vacation or PTO is not accrued during any unpaid leave period for any reason, then no accruals would occur during unpaid FMLA leave. An employer may not target only FMLA leave for the non-accrual rule.8
Response #3
As for PTO usage during FMLA, the regulations specify that the employee can choose whether to use accrued PTO or not, unless the employer has adopted a written rule that the employee MUST use accrued PTO during leave and notice is given to employees in advance. There is no circumstance where the employer can deny the employee usage of PTO during FMLA leave. Most employers prefer to require PTO usage so that such time off and FMLA time are being used simultaneous[l]y and the employ[e]e won't exhaust 12 weeks of FMLA and then still have more PTO time off.9
Response #4
As to your question about repeated conduct of this nature, if that occurs I think that would strengthen your "honest belief" but [you] would still want to look into it further to develop more facts.
I have only had a couple cases of suspected abuse. In one we confronted a long-time employee with the suspicious circumstances we had before the leave was taken. The employee grumbled but withdrew the request and there has been no further attempt. He was counseled that further abuse would result in termination[.] If this was a short[-]term employee, we may not have been so lenient.
In another case we suspected abuse of intermittent leave to care for a parent, but the intermittent requests always landed on a Monday or Friday. We learned that the employee actually went hunting over an extended holiday weekend with his buddies - none of whom was his seriously ill parent. We believed that he was using the previous intermittent FMLA leave determination to get out of working over the holiday.
Neither of these employees challenged the action we took, I believe mostly because our HR personnel (with help from Legal [Department]) developed adequate evidence and were forthright, prompt and fair in their explanation to the employee.
Tread carefully. But if you have sufficient evidence, do not fear to tread where liars trod.
[...] I think another way to deal with this is [that] when you don't have direct evidence[,] to confront the employee and let them know that you believe the pa[t]tern of absences is suspicious. Simply ask him whether he is being truthful and that you will be watching in the future. I think that is perfectly defensible as a reasonable investigation. Although[,] if you later have to discipline the employee for some other reason, he might try to bootstrap an FMLA absence as the reason for retaliation on the unrelated performance issue. As is always the case, documentation to support any discipline is key.10
1 Response from: Kevin Chapman, Assistant General Counsel, Dow Jones, New Jersey, United States (July 10, 2013).
2 Response from: Bonnie Uphold, General Counsel, DPI Specialty Foods, California, United States (July 11, 2013).
3 Response from: Eileen Groves, Attorney, retired, Texas, United States (July 11, 2013).
4 Response from: Calvin Siemer, Senior Associate General Counsel, Las Vegas Sands Corp., Nevada, United States (July 11, 2013).
5 Response from: Martha Cardi, Chief Compliance Officer - VP Legal, Reed Group, Ltd., Colorado, United States (July 12, 2013).
6 Response from: Jeffrey Turner, Senior Vice President, General Counsel & Secretary, Metal Technologies, Inc., Indiana, United States (July 10, 2013).
7 Response from: Eileen Groves, Attorney, retired, Texas, United States (July 11, 2013).
8 Response from: Calvin Siemer, Senior Associate General Counsel, Las Vegas Sands Corp., Nevada, United States (July 12, 2013).
9 Response from: Martha Cardi, Chief Compliance Officer - VP Legal, Reed Group, Ltd., Colorado, United States (July 12, 2013).
10 Response from: Jeffrey Turner, Senior Vice President, General Counsel & Secretary, Metal Technologies, Inc., Indiana, United States (July 10 & October 2, 2013).