FMLA Abuse Series Part 4: Practical Ways to Approach FMLA Abuse

So, you found a pattern in an employee’s FMLA use or they have been using it a lot more than what their doctor originally predicted . . . now what?

First, put aside any preconceived notions that you have about the employee and their FMLA use. If an employee has had some disciplinary or attendance issues in the past, it may be tempting to assume that they are not a great employee and therefore doing something shady. But even poor employees have legitimate health conditions or family members with health conditions . . . so try not to jump to conclusions.

Here are the steps you should take before you reach out to the employee:

  1. Review their most recent medical documentation or certification from their doctor. Make sure you understand everything that their doctor communicated about their condition, treatment, and frequency of flare ups.
  2. Make sure you understand what their scheduled hours are, especially if their schedule varies. The last day of someone’s work week isn’t always a Friday
  3. Reach out to the HR rep who supports their department or business unit to find out if there are any recent, current, or planned disciplinary conversations with the employee. Disciplinary conversations should never be combined with FMLA conversations, but it’s important for you to be aware of anything the employee may bring up when you meet with them. (If you’re an HR department of one and you handle all conversations then you should consider outsourcing your FMLA administration).
  4. Reach out to their manager to find out if they've had any conversations with the employee about their performance or about their FMLA absences. Like step #3, awareness is important.
  5. Reach out to their manager to find out if there have been any recent changes to how the schedule is completed or communicated, or any other changes that the employees have been vocal about.

    Now that you’ve gathered the information you need it’s time to plan for your conversation with the employee. Preferably, you can meet with them in person, but if not, plan for a phone call. Never complete this type of communication via email alone.

    I like to ask the employee to meet to talk about their FMLA and ensure them that it’s not a disciplinary conversation. If an employee has never been asked to meet with HR, and now suddenly they’re being called in, they may show up to the meeting with their defenses up.

    Prior to the meeting you should prep the paperwork to give to the employee just in case you decide to move forward with recertification. Recertification is when you ask the employee to have their doctor complete the Certification of Health Care Provider form to confirm if anything has changed. I find that recertification isn’t always necessary, but it’s good to have the paperwork ready just in case.

    The recertification paperwork should include:

    • A cover letter addressed to the employee with the following information:
      • An explanation of why you are requesting recertification (i.e. Friday pattern, more frequent than expected, etc).
      • A question that the employee should ask their health care provider to complete. The question is “Are the employee’s absences consistent with the nature of their condition? Please explain.” Provide space for the doctor to answer the question on the cover letter, to be returned with the completed certification form.
      • A clearly defined due date and the consequence for not providing the recertification information by the due date. I like to use the phrase “Failure to provide the requested information by the due date may result in the denial of your FMLA. If your FMLA is denied any future absences will be subject to the attendance policy.”
      • Instructions on how to return the paperwork.
      • Contact information in case the doctor has questions.
    • A copy of the last certification that the doctor completed.
    • A list of all the employee’s FMLA absences in the prior 12 months, with the absences in question highlighted.
    • A blank certification form for the doctor to complete.

    Before we talk about how to handle the actual conversation with the employee, I want to circle back to the first part of this article. Do you still have your preconceived notions about the employee’s FMLA usage up on a shelf? Yes? Okay, then we can proceed.

    When you meet with the employee you should start with something like this:

    “It’s my job to keep an eye on everyone’s FMLA cases and check periodically to see how things are going and if there’s anything else that ABC Company can be doing for you. I noticed that you are using your FMLA time a little more than your doctor originally anticipated and that the absences tend to fall on Fridays. How are you doing and/or tell me about how your treatment is going?”

    Then let the employee talk.

    Most likely you will hear that their condition has gotten worse, or their family member is worse, and they are struggling to balance their personal needs with their need to work and provide an income for themselves and their family.

    They are not maliciously abusing their FMLA time . . . they are struggling. That is the most common answer. That’s why we put our preconceived notions about their FMLA pattern up on that shelf before we accuse the employee of any wrongdoing.

    In those kinds of situations, I would still have them recertify their leave, but the conversation has the tone of “Let’s get a quick update from your doctor so that we have everything on file” instead of “We think you’re taking advantage of this leave entitlement.”

    What if the employee doesn’t have much of an answer when you ask them how their doing and why their absences have increased? Don’t accuse them of anything yet but move forward with the recertification process.

    I want to end this post by giving you a heads up about what to expect on the paperwork that you get back from the doctor. I’ve been doing FMLA for more than 15 years only ONCE did a doctor respond to say that the employee’s absences were not consistent with their condition. ONE TIME. Most doctors will approve the employee’s absences and increase the estimated frequency and duration on the recertification form.

    The last two parts of this series discuss what options you have if that happens. Stay tuned!

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