Surveillance can be an effective way to keep employees honest about their use of leave, but employers must be cautious with this, says employment law attorney Jeff Nowak, shareholder at Littler Mendelson P.C. and author of FMLA Insights blog.

Generally, courts are supportive of surveillance when employers have real concerns about FMLA abuse. But policies need to be in place that let employees know surveillance is a possibility. Employers that don’t have these policies should update them.

FMLA abuse, just like workers’ comp abuse, is a fact of life in HR, says HR Director Sue Schwartz. If the employee has the medical necessity form completed by a licensed doctor stating that they are unable to work, then you cannot make them work.

However, since all benefits must be continued during FMLA, if they are out due to a broken leg and it is reported that they are playing football, etc., I would get surveillance on them immediately. If proven that they are in violation of their restrictions for needing FMLA, and they have benefits that are paying for their recovery, then you have a case of insurance fraud and the corporate attorneys can handle it.

I would not conduct surveillance unless I have documented reason for the suspicion, HR Generalist Susann Moody says.

Surveillance has to be professionally done, which will cost the organization. If there are patterns of absence, such as multiple extended weekends and/or frequent absences that are more frequent than the medical certification estimate, then surveillance may be considered. Surveillance may also be appropriate if reliable sources, such as co-workers and supervisors, reported multiple sightings that suggest the employee may not really need FMLA leave, such as social media posts with pictures showing them on vacation, at the beach, etc. However, I would make absolutely sure the report was reliable before moving forward with surveillance plans.

If an employee who is out on FMLA has certified their leave through a healthcare provider, think twice before setting up surveillance, says HR Manager Barbara Booth.

If a doctor has stated the employee is unable to work, and HR then arranges surveillance and challenges the worker with videotaped or photographic evidence, HR could find itself in a lose-lose situation, whether it’s a legal challenge or an angry employee.

A better approach would be to ask the employee for an update on their leave and their recovery. When time permits, ask the employee to recertify the leave or obtain a release before returning to work. Plus, a known instance of FMLA surveillance could affect the morale of other employees.