Employers tend to exercise less caution and react without fully analyzing the situation in this area. When an employer receives information that an employee on Family and Medical Leave Act (FMLA) leave is seen working at another job or is taking a Caribbean cruise, the natural tendency is to conclude that the employee is abusing the leave and the reaction is to immediately terminate the employee. However, such conclusions and quick reactions can lead to liability.
Step 1: Investigate Suspected FMLA Fraud or Abuse
Things may not always be what they seem when it comes to FMLA fraud or abuse. For example, if the employee taking the cruise did so at the direction of his or her physician to reduce the stress which caused the "serious health condition" that resulted in the need to take FMLA leave, the cruise may be considered part of the employee's treatment. Each individual case must be fully investigated before any action is taken.
Step 2: Review the FMLA Application Documents
Department of Labor (DOL) Form WH-381 contains the initial eligibility and rights and responsibilities notice.
Specifically, Part B of Form WH-381 contains the section informing the employee of the need to provide medical certification to support the leave request. Employers should always require this medical certification from every employee seeking FMLA leave.
Of particular importance is the section regarding episodic flare-ups. Episodic conditions, such as migraines or stress-related disorders, create scheduling problems for employers and can be the source of abuse by employees. The information provided by the health care provider concerning the frequency and duration of flare-ups is critical to preventing abuse.
For example, if an employee has a pattern of leave that is not consistent with the information provided on the Form WH-380 (routinely taking Mondays or Fridays off, for example), this may provide the basis to inquire further and possibly take action against the employee depending upon the results of the inquiry.
Employers may also seek clarification from the health care provider to help understand the information provided when they suspect fraud or abuse. If the employer has reason to doubt the authenticity of the certification, it can provide a copy of the certification to the health care provider and ask to verify it. Prior to contacting the health care provider to seek clarification or authentication, the employer must give the employee seven calendar days to obtain the clarification or authentication.
Step 3: Consider Recertification from the Health Care Provider
This is an important tool to curb abuse of leave associated with long-term conditions or episodic conditions. A recertification may alert the employer to changes (improvements) in the condition that do not support the leave the employee has taken.
Employers are free to request recertification every 30 days unless the initial certification indicated that the employee would be out for more than 30 days.
A recertification may be requested before the period indicated in the initial certification under three circumstances:
- A request from the employee to extend the leave;
- The circumstances described in the initial certification have significantly changed; or
- The employer becomes aware of information that raises questions about the continuing validity of the initial certification.
The last circumstance provides employers with a tool to validate the need for leave. For example, if the employer has a good faith basis to believe that the employee's repeated pattern of taking Mondays and Fridays off is not related to the "serious health condition," he or she can use the recertification to obtain information from the health care provider before taking any action against the employee.
As with the initial certification, the employee has 15 calendar days to provide the recertification from the health care provider.
For serious health conditions that last more than a year, the employer may request a new annual medical certification. As with the initial certification, the employer may seek clarification, authentication, and recertification associated with the new annual certification.
Step 4: Interview the Employee
Before taking any action, give the employee an opportunity to explain the circumstances at issue. The employee may provide the employer with further validation for the behavior in question or a sufficient explanation.
Tip
Wait until the employee returns from leave before conducting the interview. Requiring the employee to perform any work while on leave, including being interviewed, may be viewed as interfering with the leave entitlement.
Step 5: Review Written Policies
Does the employer have a policy prohibiting an employee from working for other employers while on leave?
Such a policy should apply to all leave, regardless of type (i.e., FMLA), to avoid discrimination claims. Without such a policy, the employer may not be able to take action against an employee who works elsewhere while on FMLA leave. Not all "serious health conditions" would prevent an employee from performing other work.
Does the employer have a policy that requires employees to report absences to a particular person or within a specified period of time?
The fact that an employee is on FMLA leave does not shield him or her from the requirement to comply with an employer's notice or call-in policies.
Step 6: Think Outside the FMLA Box
The employer should determine whether the employee's behavior would have resulted in a termination if the employee had not been on FMLA leave. If similar behavior resulted in lesser corrective action for employees not on FMLA leave, it will be difficult to justify the termination.
Tip
As part of any effort to terminate an employee on FMLA leave always seek advice and assistance from competent counsel well familiar with the FMLA.