This is the last in a five-part series on addressing issues facing employers in managing the possibly fraudulent use of intermittent leave under the Family and Medical Leave Act (FMLA). In the last posting, I discussed fitness for duty examinations, which are covered by the FMLA regulations. Now let’s turn to non-regulatory options for employers.
Employees on FMLA leave are still subject to employer policies requiring compliance with notice and call in procedures each time they will be absent, even for FMLA-covered reasons. Employers may also require employees on FMLA leave to report periodically on their status and intent to return to work while on leave. 29 C.F.R. §§ 825.303; 825.311. Indeed, one court held that a company policy requiring employees on approved leave to call in each time they left the house could be applied to employees on FMLA leave. An employee’s failure to follow notice and call in procedures without adequate excuse is grounds for discipline, even of the employee on FMLA. Courts have upheld terminations of employees on FMLA leave for failure to comply with notice and call-in policies.
Verification and Investigation
While it is clear that an employer cannot require a doctor’s note to support each incidence of intermittent leave, the regulations are silent on the issue of non-medical verification of the actual use of FMLA leave for a serious health condition (e.g. a note from the nursing home when the employee takes FMLA leave to care for a parent at that facility). While an employee could claim that such a targeted requirement would be an interference with his FMLA rights, such claim would be unlikely to succeed as long as the employee provided the note and received the leave. If the employee is unable to provide such a note, because he was not actually visiting the nursing home, it is likely that he would not even attempt to assert the claim. We would not recommend instituting such a verification policy as a matter of course, but restricting verifications to cases involving suspected abuse.
Another option is for the employer to conduct an investigation into the FMLA usage. Courts have held that an employer who suspects FMLA abuse may take steps to verify whether the employee is actually using the leave appropriately. This can involve calls to a non-medical entity, such as a nursing home, to confirm that the employee actually visited his parent. It can also involve the hiring of an investigator to observe the employee’s activities while on leave.