Avoid FMLA abuse: Four strategies to beat FMLA violation

by on January 14, 2010 · 27 Comments POSTED IN: HR Info Center

Avoiding FMLA abuse: How to tell if an employee is ‘faking it’

If you’ve dealt with FMLA abuse, you know that violators act like family medical leave is free vacation time. Here’s how you can minimize FMLA violation in your company:

  1. Create a comprehensive FMLA certification form. Most FMLA certification forms provided by the DOL just ask doctors to check off boxes. This leaves out a lot of detail, leaving a lot of room for FMLA violation.

    But what most companies don’t know is: You can ask for more specific information about the worker’s condition to determine if leave is truly necessary—or if it’s FMLA abuse. The certification form could ask doctors:

    • The date the condition started
    • Estimated duration of the condition.
    • Definition of the worker’s condition.
    • Required treatment.
    • Whether hospitalization is required.
    • Whether the condition will incapacitate the worker

  3. Ask for a second opinion. If a doctor says an employee has a back condition, and you notice the employee seems to be fine, ask for a second (or even third) opinion to verify the diagnosis. The second or third doctor may be more hesitant to approve what may be an FMLA violation.

    Just keep in mind it’s at your expense.

  4. Ask for re-certifications. You can do so every 30 days (at employee’s expense) under the FMLA. Abuse can result if an employer ignores certification rules, for a condition might not be deemed severe enough for leave after 30, 60, or 90 days.
  5. Attach a letter to the certification along with the worker’s attendance record. In the letter, ask the doctor whether the worker’s condition is incapacitating enough to warrant the days she was absent. The doctor could help you catch an FMLA violation.

    That’ll accomplish a couple of things:

    • The employee who’s milking the leave will get embarrassed and perhaps think twice about FMLA abuse in the future.
    • The doctor might be more truthful in designating leave for the worker.

Based on Steven Teplinsky’s Audio Conference entitled: Stop Intermittent FMLA Leave Abuse Now, 5/24/06.

Company changed benefits plan, deprived workers of accrued sick days: FMLA abuse?

Employees sued for FMLA violation, but company prevailed

Is it an FMLA violation to change your benefits package and deny employees benefits accrued under the old plan? According to a recent Court of Appeals decision, no.

After a merger a few years ago, Wells Fargo Bank changed its benefits policy. Although the new plan was generous, it didn’t recognize the sick days accumulated by employees prior to the merger.

Angry over losing their stock of paid sick days, several employees filed a class-action suit, claiming themselves victims of FMLA abuse.

FMLA requires employers to provide at least 12 weeks of unpaid leave to employees for:

  1. The treatment of a serious disabling health condition suffered by the employee
  2. The birth of a child
  3. The care of a child, spouse, or parent who suffers from a serous health condition.

The court ruled that Wells Fargo’s change in benefits did not qualify as FMLA violation. The judge ruled that FMLA “does not create an entitlement to accrued sick time. In short, the FMLA does not require Wells Fargo to ‘lock-in’ a particular benefits package.”

Bottom line: The court rejected the plaintiffs’ attempt to link sick time policies to the FMLA. Abuse would mean violation of FMLA regulations, but Wells Fargo’s new plan met the minimum requirements of the act. That’s what mattered to the courts.

Cite: Funkhouser v. Wells Fargo Bank, NA, U.S. Court of Appeals, 9th Circuit, Nos. 00-35397 and 00-35410, 5/15/02.

27 Comments on This Post

  1. Anonymous
    April 1, 2010 - 12:38 pm

    i was told by my employer that I had to file for FMLA because I was out of work over three days. I have a workman’s comp claim and I was out due to complications from a procedure from the workmans comp doctor. Do I still have to provide FMLA certification to them?

  2. Linda C
    June 7, 2010 - 9:39 pm

    Does FMLA kick in first if I am disabled? And, then, my short term disability insurance plan would pay me while I am out for my surgery and recuperating, therapy, etc.?

  3. Rwallace
    June 11, 2010 - 10:50 am

    If an employer discovers an employee has mislead or has used more FMLA designated time than what the doctor has certified as required for the condition, can the employer go back and designate the time as straight sick or other accrude leave? otherwise remove the FMLA designated time for the time which should not have been FMLA leave?

  4. Rwallace
    June 11, 2010 - 6:50 am

    If an employer discovers an employee has mislead or has used more FMLA designated time than what the doctor has certified as required for the condition, can the employer go back and designate the time as straight sick or other accrude leave? otherwise remove the FMLA designated time for the time which should not have been FMLA leave?

    • rliblogs
      June 11, 2010 - 10:01 am

      That?s an interesting issue. At HR Café, we can?t provide legal advice, but
      we invite other readers to post comments or responses to this question.

      Michael Boyette
      Executive Editor
      Rapid Learning Institute
      PO Box A
      Morton, PA 19070


  5. Anonymous
    June 11, 2010 - 2:01 pm

    That?s an interesting issue. At HR Café, we can?t provide legal advice, but
    we invite other readers to post comments or responses to this question.

    Michael Boyette
    Executive Editor
    Rapid Learning Institute
    PO Box A
    Morton, PA 19070


  6. Lbhilbert
    August 24, 2010 - 3:54 am

    what about when an employer abuses an employee that is covered by fmla? shouldn’t there be some way to protect the employee when there is a serious condition and they are being abused by his/her supervisor for giving the fmla paper from there docter? please advise on this situtation.

  7. Anonymous
    August 24, 2010 - 1:45 pm

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

  8. Ray Ytuarte
    August 29, 2010 - 3:24 pm

    i was fired arter my FMLA term of 16 weeks,, is that legal? i did not return to work and im now on LTD.. help rayytuarte@yahoo.com

  9. Phillip_wick
    October 12, 2010 - 2:34 pm

    Is there anything that can be done about being fired while still on under medical care? phillip_wick@yahoo.com

  10. Mummy
    October 17, 2010 - 11:19 pm

    What about when your employer abuses and perverts the process of FMLA certification to deny you using your own sick leave? hmmm?

    What about when they blatantly misapply and misinterpret the regs, and refuse to explain or answer your inquiries? hmmm?

  11. Lisa6arnold
    November 2, 2010 - 1:09 am

    My employeer is not allowing me to return to work after 24 wks off due to auto accident. They have now said if I am allowed to return, I will be demoted in my job title. Is this legal? Please help. Lisa6arnold@yahoo.com

    • Tony
      May 13, 2011 - 3:23 pm

      they can put u in another job. But have to pay u the same rate. Read the law. 

  12. Tincan53
    December 29, 2010 - 11:07 pm

    This article seems to be a guide for employers to use against employees. Duh! My daughter has a condition that requires numerous absences from work. I believe my employer now believes that I am “milking” FMLA. It ain’t true. My daughter’s condition is severe and it is impossible to know when she might have a seizure or other medical emergency that requires my assistance. The tone of this page is anti-employee and anti-compliance with the law.

  13. Rhona1313
    January 1, 2011 - 1:05 am

    Can an employer make you take FMLA Leave for surgery when your company offers sickness and accident in order to use up your weeks.

  14. Trish
    February 22, 2011 - 11:43 pm

    I was out on a work related injury for 90 days. While out on FMLA/WC for 90 days can my employer take away vacation time not accured while out on WC?

  15. Forgotmycamera
    February 24, 2011 - 8:09 am

    I have been working with a expert fmla abuser, for many many years. It is so very frustrating She will ask for a day off, If she doesn’t get it, she will just call in on fmla. Last February, she worked 6 days out of february. She has a very desireable position, and because the laws are how they are, our employers hands are tied. I work with some hard working people, then I work with fmla abusers. Is there no laws that protect the people that do go to work, and do there job?! Who do you think gets stuck doing the job of the fmla abusers when they decide they are going to take that day off?! She has been denied time off, called in sick on fmla, then came back to work, and bragged about how much money she made on her garrage sale that she was denied her request off. Also, there is the hard working people that have to replace her on there day off. some people are narcissitic, and this law is just giving them the right to do what ever they want, not be held responsible for it, and hold on the there full time benifits! I have worked for this company for 22 years, and it is a good company, but this fmla abuse just might be the fall! Isn’t there some way to protect the people that do go to work and play by the rules? Pretty soon if something isn’t done about this, we will ALL be on fmla, or the rules will make US crazy! Is that where “if you can’t beat them, join them” comes in? then where will our employer be? What’s up?!

  16. Forgotmycamera
    February 24, 2011 - 8:14 am

    I think you are wrong. Everyone has rights even the people that pick up the slack when you are not at work. There are different circumstances for everyone, and I am sure your situation is completely worthy of fmla. It is a good law. The problem is, is that it is so widely abused. Some people just give the legitament ones a bad name.

  17. Fed Up
    April 15, 2011 - 9:34 pm

    Let me give a few examples of the FMLA abuse where I work.
    One woman found out two hours into our shift her friends were going gambling. She hung up her phone, called the boss over and said she had to leave FMLA. And left. A man I work with said he didn’t like a job added to his team (co-workers) of 7 people. He said “I’ll see you in 3 days”, then called the boss over and told him told him “I’m leaving FMLA”. And left right then. We saw him 3 days later. He did this twice in two weeks. Another was in a bar before work and decided he didn’t want to work that night and called off FMLA.
    These are just a few.
    I was there working with these people when they pulled this. The man that was in the bar bragged about it the next day at work. Many brag it. The man who called off 6 days out of 8 said “They can’t do anything, all they need to know is it’s FMLA”.
    Our attendence policy changed and got stricter because of these people, yet the new policy doesn’t affect them. It just made it harder on the rest of us.
    These people ruin it for the rest of us that show up every day and do our job. We are sick of them and of being short handed and having to do their work too!

    • Melissa
      June 4, 2015 - 12:28 pm

      Your company should probably outsource your FMLA process. It sounds like you are not following the process. It’s more difficult than picking up the phone and saying, I need to take “FMLA”. Please read up and follow the process and you will find that most of your problems will go away. This law was enacted to help prevent employers from firing employees with legitimate FMLA concerns because a father was fired for taking time to be with his daughter who had cancer. Deceptive employee practices are just that – and there is performance management tactics that can be used to control and possibly exit problem employees.

  18. Jholmanins
    May 3, 2011 - 6:07 pm

    What are the guidelines for FMLA Act to the employees? Is posting in a conspicuous location adequate ?

  19. Neil4950
    June 4, 2011 - 9:44 pm

    I have worked 28 years as a RN.Those years spent bending over a patient’s bed have rewarded me with a neck so full of arthritic spurring that to turn my neck is agony. I decided to look up FMLA because my condition has been designated as FMLA eligible and I know that most big companies would use any technicality to either deny me FMLA and/or fire me despite my being a good nurse. Instead of help, I run across your site that tries to help these big companies that already hold all the cards. Do you really think that your tips will only be used to eliminate the abusers? These Corp. want only profit. When I start costing them money, they would prefer to get rid of me and bring in new ,young employees. I hope there is someone out there who is trying to help the rest of us as vigorously as  you are trying to help these multimillion dollar businesses  THANKS A LOT BUD

  20. Julie
    January 5, 2012 - 9:59 pm

    Can an employer require an employee to call every week to check in with HR when they are on a protected leave, such as FMLA?  Even though a  medical certification was provided and valid for three weeks, is this action legal?

  21. Glassman50us
    April 19, 2012 - 2:56 am

    can an employer make an employee use fmla if the employee is off on sick leave?  We have had workers of for surgeries and the company makes them sick leave and fmla concurrently, so they use up their fmla before they get back to work.  He was off for 3 and 1/2 months and now has no fmla leave should he need it this year. We are wondering if it is legal for an employer to make them use fmla leave when they are on sick leave too?

  22. MT
    May 11, 2012 - 3:09 pm

    Your company really needs help with hiring the right managers.  These instances is beyond believable to a normal person…..

  23. Janet
    January 18, 2013 - 12:47 am

    What if the employee has 2 jobs and is working the other job is he or she still eligible for FMLA?

  24. Robert
    August 11, 2016 - 8:11 am

    Ok people:, FMLA is NOT paid leave. It is protected leave.
    That means even if your are out of regular and sick leave, you absence is still protected provided you do not go over 12 weeks of absence.
    Your company is NOT obligated to pay you anything if you are out of earned accrued leave.
    Most companies require that you take accrued sick or annual leave if you have a positive balance. When you run out of accrued leaves, but still have time left on the 12 weeks, your absence will probably be classified as Leave Without Pay (LWOP)
    Understand that during your absence, your employer’s work does not diminish, so someone must pick up your workload. Occasionally, an employer will hire a temp to fill in. FMLA guarantees that either your job or a job at the same level will be available. Once your 12 weeks of protected absence are expired you are subject to your employer’s regulations for absence, including discipline or removal.
    If you have a workman’s comp issue, it is suggested you file for FMLA protection because you may get a settlement and medical care, but your job is not a guarantee.
    The best solution is to be smart about it. There will ALWAYS be people exploiting the system. Employers are no exception to the exploitation rule.

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