By Angie Brown, Business Development Manager & Absence Specialist
July 1st, 2019
Employer surveys suggest that although employers are more educated on the FMLA than ever before, they still struggle with the FMLA and its abuse and potentially fraudulent usage. But what can be done to combat FMLA abuse?
Managing instead of tracking FMLA is first and foremost. Do not simply approve all absences as FMLA-qualifying simply because someone has an approved FMLA claim. Ensure that the employee is reasonably using the time allowed as provided by the physician on a complete and sufficient provider certification. The real challenge arises when an FMLA claim is properly managed, yet there is still confidence that the employee is taking advantage of the FMLA and the organization.
The Legal Basis for Investigation
The “honest belief” rule provides the legal justification for employers to investigate and challenge suspected FMLA abuse. The rule has proven to be a forcible tool, and employers have had great success using this defense in FMLA retaliation or wrongful termination suits.
Before a court will uphold an adverse employment action against an employee, however, they will expect the employer to validate the accuracy of its suspicions. This usually involves an investigation. One must tread carefully and be meticulous in the process.
Dozens of cases have been defended using the “honest belief” rule, generating a growing list of business best practices that have helped give employers victory in court. When defending against a terminated employee’s accusation of interference or retaliation for the exercise of FMLA rights, the employer’s defense is based in:
29 C.F.R. § 825.216 (a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period …(d) An employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.
When an employer decides to investigate a case that might warrant terminating the employee, key points for employer success are:
- Have a clearly defined attendance policy.
- Interview witnesses and other employees.
- Use a reputable surveillance company or off-duty police officer.
- Present findings to the employee and provide them the opportunity to explain.
- Document, document, document!
Based on the statute cited above, if company policy is to terminate an employee for defrauding the employer in any manner, those same rules apply whether or not the employee’s FMLA claim was approved, and the position need not be reinstated.
The challenge is in proving the employer honestly believed the employee was misusing FMLA, misrepresenting facts, or otherwise defrauding the system. A preliminary to establishing this case: an employer must provide a well-written, clearly defined policy that concretely advises employees what the repercussions are for fraudulently obtaining leave, falsifying documents, or any other deceptive acts.
In the case of Rydalch v. Southwest Airlines, the employer’s attendance policy clearly defined Rydalch’s reason for termination. Southwest’s attendance policy read: “Using sick leave or sick pay for a purpose other than intended constitutes abuse. Abuse of sick leave or sick pay shall warrant immediate termination.” As a result, Southwest had only to prove it had an honest belief that the employee had indeed used leave other than for its intended purpose.
Establishing Honest Belief
Southwest began to suspect that its employee Rydalch was misusing his intermittent FMLA for back pain when his supervisor began to notice a pattern to his absences. Rydalch reliably had flare-ups on important holidays, including July 4, Memorial Day, Labor Day, his birthday, his wedding anniversary, and December 24 and 25. He also missed the days before and after his regularly scheduled dates of absence — in fact, for a total of 35 times.
Rydalch’s supervisor documented this pattern of events and took the time to go over the attendance policy with him to ensure he understood it. Rydalch confirmed he did. Then the supervisor began to monitor his flights and noticed that on his FMLA days, he was flying back and forth from Texas to Salt Lake City, Utah. Approached again with the attendance policy, he again confirmed that he understood.
But Rydalch had already booked a flight to Salt Lake City over the Christmas holiday and again called in for an FMLA leave. His supervisor was able to show that Rydalch had booked this flight in June, and therefore, had anticipated fraudulently using FMLA time. Southwest clearly had an honest belief that Rydalch was abusing his leave, and the clearly defined attendance policy ensured that they could disprove his retaliation claim. In dozens of cases like this, clearly defined attendance policies were brought forth.
Absence patterns are a common reason for employers to honestly believe that an employee is abusing FMLA privileges. Other common abuse scenarios are requesting FMLA on previously denied requests for paid time off, and undertaking public travel or visits, posting pictures of activities on social media and, amazingly enough, talking to coworkers about activities while on leave.
Once the employer believes that fraudulent FMLA usage is transpiring, gathering and documenting the supporting data is key. Employers are using several methods to do this today. They may interview other employees or interview witnesses and physicians, as in Weimer v. Honda of America Mfg.
In this complicated case, Weimer was seen by several people building his front porch, climbing ladders, and standing on his roof while he was out on continuous FMLA leave after a head injury at work. Weimer’s leave continued based on his statements to his physician about his symptoms of headaches and blurred vision and about how he only sat around at his home and certainly did not complete any home projects.
The interviews with witnesses to his activities were important. Weimer cited that his serious health condition was valid and true, and if he completed projects while injured and out on leave, he should be able to do so “at his own risk” — disputing that the video surveillance tape mattered. The physician, however, stated that he had continued to extend the FMLA leave due to Weimer’s statements regarding his symptoms and what he was able (or not able) to accomplish physically. The jury was instructed not to determine whether Weimer actually lied but whether Honda had reasonably and honestly believed that Weimer lied. On appeal, the jury rendered a verdict in Honda’s favor.
Surveillance Case Law
Surveillance has become a favored approach for employers to support their suspicions. In almost all cases, it has assisted in proving spurious claims by employees. Courts often reject the employee’s argument that they should not be surveyed outside of their normal working hours.
In Vail v. Raybestos Products Co., the employer noticed an increase in Vail’s intermittent FMLA usage for migraines during the summer, when her spouse’s lawn mowing business was busiest. In fact, she used 33 days from May to September. Raybestos hired an off-duty police officer who taped Vail mowing lawns with another person. Vail’s argument that she was never scheduled to work during the day but only the night shift carried no weight in the case. The verdict was for Raybestos, and an appeal was denied.
But surveillance is not a foolproof tool and may not carry the case when used as the sole basis of the belief that an employer was defrauded.
In Nelson v. Oshkosh Truck Corp., the employer failed to prove it had an honest belief it was defrauded when Nelson sued Oshkosh for violating her FMLA rights. The Oshkosh claims manager became suspicious when Nelson hand-delivered her work restriction form that took her out for three weeks, saying that she was “dressed properly” and appeared to be “going somewhere.” Oshkosh decided to initiate surveillance. On two occasions, the investigator found her shopping, visiting her child’s daycare facility, entering and exiting her car, and carrying items.
During this time, her provider certification was returned citing an inability to work and advising that medications had been prescribed. No diagnosis was provided, but one is not needed to determine that a serious health condition exists for the FMLA. The physician advised that she would be unable to perform employment functions such as standing, sitting, walking, moving her arms, lifting, and speaking.
At this point, Oshkosh made a strategic blunder. Instead of accepting this certification and validating the company’s honest belief that Nelson was misrepresenting her FMLA claim, Oshkosh called her physician to seek clarification. A new certification was submitted clarifying that the functions previously listed as “unable” were in fact “all possible at times” and she could perform them “only if she felt able.” The new certification also provided a diagnosis of “mental illness” and that being home was assisting with adjusting to her new medications.
Oshkosh questioned Nelson about her activities while out on leave. Nelson did not deny it was she on the surveillance tape and advised that those were activities she felt able to do at that time. Oshkosh terminated her employment. In litigation, Oshkosh was denied summary judgment, although this might have turned out very differently if the company had stopped at the initial certification and surveillance tape — before obtaining a diagnosis of mental illness and receiving clarification that it was not abnormal for her to be able to shop and carry things.
Remember the key points for employer success: clear attendance policy, interviews, effective surveillance, discuss findings with the employee, and document everything! Whether or not the FMLA is working for employers today, the “honest belief” rule certainly is. If an employer has good intentions to achieve the actual best interests of its employees and follows the rules, the FMLA can work for everyone.