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Falsifying FMLA Paperwork: A Complete Guide To Preventing FMLA Abuse

Falsifying FMLA Paperwork: A Complete Guide To Preventing FMLA Abuse

jeremiah grant
By - Jeremiah Grant
Last Updated - June 19th, 2023 10:14 PM
Jun 19

Employees abusing their FMLA rights and falsifying FMLA paperwork are common across organizations in the country.

Worse, suspicious, and recurrent FMLA abuses can be a nightmare for managers, especially around holidays and long weekends. After all, this not only affects business but also stretches your existing workforce to the limit.

As such, having an effective FMLA fraud prevention strategy is a prerequisite, notwithstanding the size of your company.

We aren’t suggesting that an employer should somehow work around employees’ FMLA rights.

On the contrary, respecting the FMLA rights and ensuring that qualified employees get to avail it is a corporate legal responsibility. Not to mention, swift FMLA approvals are also key to employee wellbeing.

Nevertheless, uncovering fraudulent FMLA benefits and preparing a plan of action for deterrence is essential to your business’s health.

Now, as a forensic accounting and business valuation service firm having helped businesses uncover fraud and prepare prevention strategies for decades, we understand that creating a solid anti-FMLA abuse plan can be a task. And that’s exactly why we’ve created a comprehensive guide to understanding FMLA abuse, patterns of abuse, strategies to cope, and more.

So read on and find out how you can stop FMLA fraud at your business once and for all.

FMLA Image

What exactly is an abuse of FMLA?

For starters, FMLA abuse occurs when employees in an organization misuse their rights under the Family and Medical Leave Act. Herein, an employee may wrongfully avail leave under FMLA and use it for purposes other than tending to personal or a family member’s medical needs, among others.

You see, under the Family and Medical Leave Act of 1993, employees working for a covered employer can avail up to 12 work weeks of unpaid leave every year.

And this is a job-protected leave scheme that allows employees to handle certain medical and other family requirements. Meaning employers can’t terminate the employment during the FMLA leave period.

Also, the law requires employers to continue the employees’ individual and group medical insurance, among other health benefits.

So the dual protection of job and medical cover during the leave period, along with the ambiguous nature of the evidence supporting FMLA leaves, leads employees into falsifying FMLA paperwork and more.

Which organizations are regulated by the FMLA?

To begin with, all covered employers need to provide their employees with the benefits of the Family and Medical Leave Act. And this includes both public and private employers.

For instance, all public employers, such as public schools, police departments, fire services, etc., need to provide FMLA benefits to their employees.

Similarly, all private employers who’ve employed more than 50 people for at least 20 weeks need to extend FMLA privileges.

What is the extent of FMLA abuse?

An abuse of FMLA rights is recurrent across workplaces. So much so that it is one of the biggest problems not just in Corporate America but also across the public sector.

In fact, around 66 percent of HR professionals admit to rampant abuse of FMLA. And about 80 percent of these HR managers also acknowledge that authenticating and tracking FMLA requests are quite difficult.

What is the root cause of FMLA abuse?

Well, most forensic accountants and certified fraud examiners, among other industry experts, are unanimous that the root cause of rampant FMLA abuse and fraud is the provision for intermittent leave.

You see, the intermittent leave provision of the Family and Medical Leave Act allows employees to avail leave for one purpose and extend it over a period of time. Herein, instead of availing all leave days at once, an employee can spread it over weeks and even months.

For instance, an employee who has scheduled a hip transplant can avail multiple leaves over a duration of weeks and be available for work in between the leave days.

So how do intermittent leaves cause a problem?

The intermittent leave clause for medical and other health-related reasons is complex in nature. And even if an employee is abusing the clause, it’s not easy for an employer or manager to prove otherwise. Here’s why:

  1. FMLA doesn’t clearly state a minimum time period for which employees can avail intermittent leave.
  2. The medical conditions that form the ground for intermittent leave, such as post-surgical pains, are hard to prove.

Now, intermittent leaves as a result of FMLA fraud or abuse can lead to big time financial losses or economic damages for a firm. Also, it goes without saying that the tasks left behind by slacking employees increase the workload of other employees, which in turn can affect their morale and performance.

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Falsifying FMLA paperwork: abuse vs. fraud

When it comes to misuse of the FMLA provisions, the two terms, i.e., abuse and fraud, are often used interchangeably. However, before we proceed to the details of fake FMLA paperwork, it’s important to understand the difference between the two terms.

To start with, an abuse of FMLA happens when an employee lies about the true nature of medical or other needs and takes a longer than necessary leave.

For instance, an employee who’s undergoing eye treatment might be fit for work after two-three days of care and medication but seeks a week-long intermittent leave.

Here, the employee isn’t actually defrauding the employer since they’re eligible for medical leave. Nonetheless, they’re misusing the system by making excessive FMLA leave requests.

On the other hand, FMLA fraud occurs when an employee who isn’t entitled to any FMLA benefits seeks to avail one.

In this case, the employee in question might resort to forging or creating fake FMLA paperwork.

An employer suspicious of fraud can initiate internal FMLA fraud investigations, albeit discreetly. And if the said employee is found to have defrauded the system, the employer can not only terminate their employment but also initiate legal/criminal proceedings.

Employees falsifying their FMLA paperwork might involve both abuse and fraud

One of the reasons why the terms FMLA abuse and fraud often are used together is because certain cases might involve both. Here are some instances:

1. Smith V. The Hope School

Smith V. The Hope School is the perfect example of how FMLA abuse and fraud can go hand in hand.

Herein, an employee requested her employer for an FMLA leave due to workplace stress. And in response to the employer-provided FMLA paperwork, she came up with a medical certificate where her physician pointed to recurring muscle pain and body aches.

Now, the employee added a line “plus previous depression” in her medical certification without consulting her physician, leading to the employer suspecting fraud.

Acting in ‘honest belief,’ the employer terminated the employee in question. And when the employee challenged her termination, both the district court as well as the Seventh Circuit Court of Appeals ruled in the employer’s favor.

You see, in this particular case, the employee had a valid medical certificate to back her FMLA request. Nevertheless, forging the document not only resulted in fraud but also pointed to suspected abuse of FMLA.

2. Capps V. Mondelez

The case of Capps V. Mondelez is yet another example of FMLA abuse and fraud unfolding together.

This case involves Frederick Capps, an employee at Mondelez Global LLC, who had sought intermittent FMLA leaves for the past nine years due to a degenerative bone disease.

For a recurring leave period between January and July 2013, Mr. Capps provided his manager with his physician’s medical certificate. However, during an FMLA leave in February 2013, he went to a local club to socialize with his friends and got arrested later in the night for DUI.

His manager received an anonymous letter a year later with a news clip of Mr. Capps’ arrest coincided with his FMLA leave. And when questioned, he provided doctor’s notes with comments on his DUI hearings, raising suspicions of fraud and forgery.

Mondelez Global LLC subsequently terminated Frederick Capps, and both the district court as well the Third Court of Appeals ruled in their favor.

Here, while socializing during FMLA leave amounted to abuse, providing fake FMLA paperwork a year later resulted in fraud. You may also want to read – What Is A Qualified Appraisal For Estate Tax Purposes?

Employee hiding the truth FMLA

What are the signs of an employee lying about FMLA?

As we saw earlier, uncovering an FMLA fraud or abuse is one of the most difficult tasks for managers and employers. And that’s exactly why this is such a huge problem, calling for a Certified Fraud Examiner to unmask fraudulent employees.

However, there are patterns of FMLA abuse that can help employers track, detect, and hold liable the employee/s abusing the right. And that includes:

1. Frequent absences beyond the FMLA leave period

It isn’t uncommon for employees to be absent well after the FMLA leave period for genuine reasons. For instance, recovering from certain viral diseases might take a long time, making the employee avail additional leaves.

But if the extension of FMLA leave is more frequent, you have reasonable grounds to be suspicious of abuse and observe the employee for more clues.

2. Longer than required absence

If a medical condition calls for a shorter duration of FMLA leaves than actually requested by the employee, this might be a sign of FMLA abuse.

As such, you can initiate an investigation and even question the employee if there’s sufficient evidence to support your doubts.

3. Falsifying medical documentation and other FMLA paperwork

A forged or fake medical certification and other such documents can be hard to notice. But there are some signs for sure that should raise red flags.

For instance, in Capps V. Mondelez, the fact that the doctor was commenting about a patient’s court appearance was a huge red flag.

Similarly, in the case of Straub V. County of Maui, the digital signature of an Arizona-based doctor raised doubts and subsequently led to the disclosure of a major FMLA fraud.

So we suggest you go through the documents supporting FMLA requests in detail and look for anomalies.

4. Absence on Fridays and Mondays

Did you know that the FMLA is also referred to by people as the Friday and Monday Leave Act?

That’s because a lot of employees request an FMLA leave right before or after the weekend.

In fact, there are many instances of employees availing an FMLA leave on Friday and Monday and posting their holiday pictures on social media at the same time.

We aren’t suggesting that all such FMLA requests are fraudulent. But if an employee tends to request FMLA leave a lot around the weekends, it’s a solid reason to be suspicious.

5. Moonlighting while on FMLA leave

An employee might be on FMLA leave for medical or other reasons and seen performing similar duties at another workplace is a sign of FMLA fraud. That’s because the person in question is able to do similar tasks elsewhere but declares incapability to do the same for you.

6. Failure to provide supporting documents on time

Upon reporting back to work after an FMLA leave, an employee might substantially delay the submission of mandatory documents such as a medical certificate. This is also a sign of potential FMLA fraud or abuse.

7. Not filling out the FMLA paperwork in advance

The FMLA rules require employees to fill out a leave form. And this is something a lot of employees delay until after they report back, often citing urgency.

If you observe more of this pattern at your workplace, there are good reasons to suspect abuse or fraud.

Note: No matter how serious a fraud you suspect, it’s important to act with caution and not rush things. That’s because pursuing an employee without sufficient evidence can land you in legal trouble, even if the employee has indeed committed fraud or abuse of FMLA.

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What can you do to prevent employees from falsifying FMLA paperwork?

Even though detecting and uncovering FMLA abuses and frauds is a task, with a full-proof plan of action in place, you can ensure that only genuine FMLA requests get sanctioned.

Here are some effective FMLA fraud prevention strategies that have helped various large and small organizations tackle FMLA misuse:

1. Make paperwork a prerequisite

One of the many ways you can stop FMLA abuse is by demanding your employees fill in the required paperwork before they avail an FMLA leave.

You see, barring genuine reasons, employees tend to delay the FMLA paperwork until they report back. And this gives them enough time to prepare their responses as well as fake FMLA paperwork if needed.

So a mandatory requirement to fill the FMLA form beforehand, along with complete recordkeeping of previous such requests, will create a sense of supervision and deter employees from abusing FMLA.

2. A necessary call-in practice works too

Another effective strategy to curtail FMLA abuses is making a call-in necessary. Herein, you can make reporting to work sick as criteria for availing FMLA leave until there are extraordinary circumstances.

The idea of traveling to the workplace or reporting to the manager each day before calling off will deter a lot of employees from resorting to misuse.

3. Provide alternative solutions

A lot of times, employees feel less productive or simply exhausted at the workplace. And this has to do with a lot of things, including the overall workplace ambiance, such as lighting, fragrance, etc.

So you should see whether the employee/s in question can be more productive working remotely or from an alternative workplace. And if so, it’s a good idea to let them work from their ideal environment.

4. Ask your employees to avail paid leaves first

FMLA leaves are unpaid, which tempts a lot of employees to make use of the FMLA for long holidays while saving up the paid leaves for other occasions.

As an employer, you’ve every right to ask the employees to first exhaust the paid leaves before they can request FMLA.

5. Undertake FMLA fraud investigations

FMLA fraud investigations, though the last resort, can be an effective way to find whether or not an employee has actually abused FMLA or engaged in FMLA fraud.

You can seek all necessary documents, including medical certifications of the employee/s or their family member/s. And this should be followed by a thorough examination of these documents.

Also, you can reach out to the physicians, caregivers, hospitals, etc., mentioned in the supporting documents to authenticate the claims of the employee.

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Can you put an employee under surveillance for suspected FMLA abuse?

Yes, you can. There are various court judgments that have justified employers putting their employees under surveillance after an honest benefit of FMLA fraud or abuse. And that includes hiring a third party to film the employee in public but without audio.

However, you should have valid reasons to pursue such surveillance, including:

  1. Patterns of absence, such as not showing up for work on Fridays and Mondays.
  2. Long periods of absenteeism despite the non-serious nature of the illness.
  3. Public sightings of the employee in question while on FMLA leave.

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You can read our blog on how to value a construction company and gain insider insights on construction business valuation.

Can you fire an employee for falsifying FMLA paperwork?

Yes, certainly. If you’ve enough evidence to prove that the employee has lied about FMLA leave, you can terminate their employment. In fact, you can do so even if the said employee is on FMLA leave.

Conclusion

As you can see, FMLA fraud or abuse is detectable, although the process can be tedious at times. Not to mention, bringing to book employees for falsifying FMLA paperwork also sets a strong precedent and deters others from doing so.

Wondering how you can undertake such an FMLA apprehension and prevention strategy?

You can get in touch with us!

We at Arrowfish Consulting are seasoned Forensic Accountants and Fraud Examiners with more than two centuries of combined experience in helping companies successfully detect fraud of all kinds. Also, we’ve helped companies undertake comprehensive business valuations, helped them navigate insurance claims, and sail through economic damages. So whatever your requirement is, we’ve got you covered.

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jeremiah grant

Jeremiah Grant

Jeremiah Grant is the Managing Partner of Arrowfish Consulting. In addition to acting as a primary liaison for many of the firm’s engagements, He primarily focuses on business valuation and economic damages expert witness assignments, in addition to forensic accounting and insurance claims analysis.