The Family and Medical Leave Act was passed with the best of intentions. The 1993 law requires all but very small employers to grant time off to employees to care for sick or injured family members, or to take time off to seek care and recovery for themselves in the event of a medical emergency.
However, it does have the potential for abuse. And workers have been abusing the law for their own purposes at their employers’ expense. Yes, leave granted under the FMLA is unpaid (unless the employer decides to provide paid leave). But it does make it tough on employers trying to schedule around weekends, holidays and special events.
Are your employees abusing the FMLA? Here are some of the warning signs:
- Increased requests for FMLA leave around weekends and holidays.
- Frequent Monday and Friday absences for FMLA
- More FMLA requests during special events around town, such as Mardi Gras in New Orleans, or a big music festival.
What actions can you take to protect yourself? One idea: Monitor workers’ Facebook and other social media pages. Are the images and status updates consistent with the workers’ story?
In one recent case, Jaszczyszyn v. Advantage Health Physician Network, an employer terminated an employee after a co-worker found that she had been posting images of herself enjoying a local Polish music festival. She had also left messages with her employer saying she was in too much pain to go to work the following Monday. After an investigation, the company let her go. Jaszczyszyn sued her employer, claiming her employer was interfering with her right to take leave under the FMLA.
Jaszczyszyn lost the case at the local level, then appealed and lost again.
So employers can take action to terminate employees caught in FMLA fraud. But it’s important that the employer be on a firm factual footing, because when a worker asserts that they were entitled to the protections of the Family Medical Leave Act the burden of proof shifts to the employer to show that the employee was committing fraud.
Why do employees do this? It could be to enjoy a weekend off with friends despite work responsibilities. Or they could be using the FMLA as cover to work another job.
So what can employers do?
Collect time-stamped photos or Facebook status posts showing that the employee was not where he or she said he would be. Obviously, if an employee is claiming medical leave for his own illness or injury, a news story proclaiming him to be the winner of the Ironman Triathlon over that same weekend would indicate that he was not as hurt as he claimed to be. (But he may need medical leave by the end of the weekend!)
Conduct an investigation. Bring in the workers’ known friends and colleagues, one at a time, and ask them what they know of the suspected workers’ activities and plans for the weekend.
Hire a private investigator. These professionals will conduct discreet surveillance of the workers’ home and photograph or videotape the workers’ activities – or lack of same. Remember that some jurisdictions have laws restricting recording or taping without consent so know the laws in your area. You may want all your recordings with no audio.
If the employee is using the FMLA act as a cover to work a second job, naturally it won’t be difficult to establish with video surveillance. In other cases the truth may not be so clear-cut. You will also want to compare anything collected on video with any restrictions the employee claimed due to medical conditions necessitating medical leave. The law protects employers, too, provided they make a reasonable and considered decision based on their honest belief and a thorough review of the evidence available at the time.
One side benefit of surveillance: When word gets out that an employee was fired for FMLA fraud, or that the company can and will hire a private investigator to pursue possible FMLA fraud, others will be less likely to attempt the same thing.