With the holiday season approaching, now is a good time to review some practical tips for an employer when addressing suspected abuse of FMLA leave by an employee, although these tips represent best practices year round. An earlier post provided insight into measures an employer can take to prevent the abuse, but what is an employer to do when it receives information indicating the abuse is ongoing or has already happened?
1. Conduct a thorough investigation before contacting the employee. Employers may receive information, directly or indirectly, from other employees which raise suspicions about another employee’s abuse of leave. Those co-workers can be a valuable source of information to the employer. Employers can also use resources such as social media or private investigators, subject to any state law limitations, to gather information.
2. Schedule a meeting with the suspect employee. During this meeting, the employer should inquire about the employee’s reason for absences on the dates in question and whether the employee can provide any information or documents corroborating legitimate FMLA use on those days. The employee’s use of FMLA leave should track the employee’s medical certification upon which FMLA leave was approved.
The employer should provide the employee a fair opportunity to account for his or her leave without “accusation” of abuse from the employer. If the employer has evidence suggesting FMLA fraud or abuse, the employer may ask the employee to explain. The employer may then assess the credibility and truthfulness of the employee’s explanation.
An employer should take caution when scheduling this meeting with the suspect employee. While an employer may be anxious to address suspected abuse of leave, contacting an employee while on leave may lead to an interference claim. Counsel can advise an employer about when and how to address suspected leave abuse with the offending employee.
3. In the event of termination, document everything. Clearly worded employment policies, including social media and leave abuse policies, can legally support an employer’s decision to terminate an employee’s employment for FMLA fraud or abuse. The employer’s investigation and subsequent meeting with the employee should be documented to demonstrate the full and fair investigation conducted by the employer, and that the employer’s ultimate decision was made in good faith, based upon evidence then available to the employer. Such documentation is important for defending against any FMLA interference or retaliation claims that may follow.