FMLA Fraud: How to Detect and Deal with It

Although most employees use FMLA leave appropriately, says Beverly Kish, there are always going to be some who "work the system." You'll pick up on most of that if you monitor leaves for patterns that might indicate fraud, she says. Kish, SPHR certified, is director of Human Resources at National Flight Services. Her remarks were reported in a recent issue of BLR's HR Manager's Legal Reporter.

Here are the abuse patterns Kish is on the lookout for:

-Monday/Friday absences. The FMLA isn't a long weekend program, notes Kish.

-Annual timing. When employees take FMLA the same week every year, or always seem to have that medical flare-up between Thanksgiving and New Years, you might be suspicious, says Kish.

-Unreal circumstances. Kish remembers one employee who had a parent in Italy who "got sick" each summer. "Summers in Italy are brutal and the old folks suffer the most," Kish noted dryly.

-Consistent exhaustion of leave time. If an employee has exactly 12 weeks of health problems every year, that merits investigation.

-Use of FMLA to avoid attendance policies. Some employees' FMLA requests are surprisingly timed to save them from violating attendance policies.

When you spot these patterns (and you will), says Kish, the first step is to rigorously review the certification. Consider requesting a second opinion from a neutral physician, or even a third opinion for a tie-breaker. These additional opinions are at the employer's expense, she notes, but they will root out fraud and remind other employees that you mean business.

Then, require recertification every 30 days if the original certification has run out or if you reasonably suspect fraud.

Final Tips from the Field

Kish shared a few miscellaneous FMLA tips for readers.

--The 12 months of work employees need to qualify for FMLA leave don't have to be continuous. For example, a summer intern who worked 3 months for 4 summers would have his or her 12 months.

--Be sure to use a rolling method for calculating the 12-month eligibility period. If you don't, employees can take 12 weeks FMLA leave at the end of one calendar year, and then turn around and take 12 more weeks at the beginning of the next year.

--Carefully consider the status of temps, especially those you later hire. Their temp time may count toward the 12 months and 1,250 hours in a year that spell FMLA eligibility even though, as temps, they were not eligible, she says.

Headache #1: Intermittent FMLA Leave

Most employers agree that intermittent leave is, by far, the biggest FMLA headache-actually one of the biggest HR headaches, period. Proposed regulations may clarify the rules somewhat, but for most employers, the only big change will be counting in hour increments. That will be a significant relief for employers who've had to count in 7-minute blocks but, even for them, tracking intermittent leave will still be a hassle. (Other proposed changes to FMLA are more wide-ranging.)


Source: BLR