Managing intermittent leave is the most difficult Family and Medical Leave Act (FMLA) compliance challenge employers face. And while most employees use FMLA for legitimate reasons, those who wish to can easily engage in FMLA fraud and abuse.
The FMLA regulations provide limited remedies to combat FMLA fraud and abuse. For example, employers can rigorously enforce their call-in policies and hold employees responsible when they fail to request FMLA properly. Employers can also count intermittent use of FMLA in one-hour increments under certain conditions and implement stricter, across-the-board rules on paid-time-off policies that apply when an employee attempts to substitute paid leave for unpaid FMLA time.
The FMLA regulations also contain several helpful provisions regarding medical documentation. With respect to initial medical certifications, an employer can insist that the information contained be complete and sufficient and require employees to cure any deficiencies in their medical certification within seven days after their employer notifies them. Employers can request second or third medical opinions if the medical validity of the initial medical certification is in doubt. However, this approach can be cost-prohibitive.
An employer can also require recertification under various circumstances, including when the leave duration or frequency exceeds the amount of time originally anticipated or when a suspicious pattern of FMLA usage develops. However, requesting recertification can result in the employee’s physician approving more time away from work for the employee. This is hardly satisfactory for the employer already struggling with FMLA fraud and abuse.
So what else can an employer do? Many employers are successfully using co-worker reports, social media posts, and even surveillance to establish that employees are abusing their FMLA leaves. But what standard will employers be held to when they use this third-party information? Must an employer prove FMLA fraud and abuse beyond a reasonable doubt or by a preponderance of the evidence? The answer is that the employer must have had an honest belief in the information it relied upon to take disciplinary action against the employee.
The seminal case that recognized the honest-belief defense stated that the issue isn’t “whether the employer’s reason for a decision was right, but whether the employer’s description of its reasons is honest.” Even though the court stated that the employer’s investigation “hardly [looked] world class,” the summary judgment dismissal was upheld on appeal. Employers should note that the honest-belief defense is much more than just a hunch or suspicion. Employers who have successfully used this defense have effectively investigated the allegations of FMLA fraud and abuse, communicated with the appropriate witnesses, and allowed employees to give their side of the story. In essence, successful employers have acted on the particular facts of the situation.
Over the last several years, courts have recognized the honest-belief defense in dozens of FMLA cases across the country. Recall that an employee can assert two types of claims under the FMLA: either a retaliation claim or an interference claim, and sometime both. While most courts recognize this honest belief defense in FMLA retaliation cases, some courts, including those in the 10th Circuit (Colorado, Wyoming, Utah, New Mexico, Kansas, and Oklahoma), also recognize the defense in FMLA interference cases.
Should you find yourself confronting issues of FMLA fraud or abuse in your workplace, MSEC’s attorneys are always available to assist.