Human Resources News & Insights

5 ways to stop FMLA abuse dead in its tracks


FMLA abuse: With all of the laws out there protecting employee rights, many employers feel it’s a problem they are powerless to stop. 

As a result, they don’t closely question employees about their FMLA requests. That can be very costly.

For example, here’s what can happen when you put employees on the honor system: One employer revealed that as much as 30% of its workforce is absent on any given day — and the majority of those absences are FMLA-related.

Employment law attorney and FMLA expert Jeff Nowak says figures like that are a clear sign the employer has fallen victim to FMLA abuse. The employer in question was one of his clients.

To help employers stuck in situations similar to his client’s, Novak has offered up this list of measures companies can take to significantly reduce FMLA abuse:

1. Make employees hand in leave request forms

While it’s true that an employer cannot deny a worker FMLA leave if the person puts the employer on notice of the need for leave, simply requiring the employee to actually write out his or her request often deters the person from taking unnecessary absences.

This can also be an effective strategy for cutting down on all types of absences.

2. Create and enforce a call-in policy

If you have a policy that says something like, “All employees must call in one hour before their shift starts to report an absence,” it’s generally OK to require employees out on FMLA leave to abide by that policy.

If employees out on FMLA leave fail to call in before they are absent, it’s OK to deny FMLA leave — as long as there are no unusual circumstances.

There’s a good chance that if an employee knows he/she must call in every day, the person may think twice about abusing their FLMA privileges.

3. Keep the lines of communication open

Even if you don’t have a formal call-in policy, it’s important to maintain contact with employees on FMLA leave. An effective strategy could be something as simple as having supervisors call staffers that are out on FMLA leave once a week.

Nowak says employers are often amazed at the results maintaining contact with absent employees can have when it comes to reducing FMLA abuse.

4. Keep those certifications coming

The best way to keep employees honest? Require them to certify their absence and seek recertification when circumstances change (like an employee needs an extra day a week of intermittent leave).

Remember, once you inform an employee of the need to obtain a certification you must give the employee 15 days to get the certification and return it to you — unless it’s not practicable under the circumstances and the employee is making a good faith effort to return it to you.

5. Give managers/supervisors a list of questions to ask all employees when they call in sick

Employers have the right to ask employees certain questions about why they need leave, as long as they don’t ask for genetic information (a.k.a. family medical history).

Here are some questions Nowak says are worth asking employees every time someone calls in absent:

  • What is the reason for the absence?
  • What part of the job can’t you perform?
  • Will you see a doctor?
  • Have you been absent for this condition before? If so, when?
  • When did you first learn of your need to be absent?
  • When do you expect to return to work?
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  • Yancey the BasicEmployeeRights

    FMLA abuse is certainly a problem. However, this statement “With all of the laws out there protecting employee rights, many employers feel it’s a problem they are powerless to stop.” can be distorted. Most employees are unaware of even the most Basic Employee Rights and employers routinely violate or don’t enforce those rights.

    One answer to curtailing FMLA abuse would be employers performing internal audits of the overall treatment of employees and the workplace culture. If the environment is a minefield of bullying, harassment, discrimination, low morale, productivity and of course attendance are sure to follow.

    • Jim

      I don’t know what planet you are from but the opposite is true. FMLA abuse is more of a problem than employer abuse. FMLA employee will use FMLA to take days off when they are tired, need time to get ready for a date, or just want to leave early, among other issues and Employers are afraid to do anything about it becuase they don’t want to be hastled by the Feds. I know people who call FMLA late because they wake up late and even call fmla to work another job. I actually know people who have a calendar set up that shows when they can take FMLA time off…and they the point of 20% of the scheduled staff daily!

  • Christine Price

    When the fmla abuser is smart, and knows what they are doing, the employer IS powerless to stop it. It is a quickly spreding virus, and the people who are already “low integrity workers” learn quick by example. This is a obviously growing epidemic, and has to be stopped!!

    Employees with integrity

  • Art

    I work for the transportation industry and we receive FMLA call off for full days as well as partial.
    > When a employee calls off for the day, he/she does not mention FMLA so an absence is given, but later down the line HR excuses it as FMLA.

    > If the employee does not say FMLA when calling off, should it not count as a reular absence?
    > Should the employee be asled if it is a FMLA absemce eben though it’s not mention?
    > Other employees hear that an employee having FMLA states that he needs to go on a trip and will just call off FMLA so as not to get an absence. FMLA abuse at it’s best.

    How can this be challanged?


  • HR in GR

    Your Employer should be requiring medical certification and notification of eligible leave 30 day prior to the leave or whatever time is reasonable. If this information is not received, then the FMLA should not be granted.
    If the employer knows the leave would be FMLA eligible they need to count it as such and begin with the PPW regardless of the EE asking for FMLA (i.e, EE is in the hospital, out with pneumonia, parent had heart attack, etc.)
    If people are “taking a trip” as you stated, this could easily be rendered if the ER follows the procedures that are put in place as I mentioned above.
    It still isn’t easy, but it certainly does help…..