FMLA Articles

Do your employees plan their unforeseeable leave?


Key to remember: Employees may take unplanned intermittent FMLA leave for various reasons, but such events are generally not predictable. They could constitute fraud.

Applies to: Private employers with 50 or more employees, and all public employers.

Impact to customers: Reduce the risk of FMLA leave abuse.

An unfortunately common scenario plays out in many workplaces. It involves employees who have a medical condition that flares up every now and then — you know, those unforeseeable, intermittent FMLA leave situations.

Some employees tend to believe that, once their leave is supported by a certification, they can try to squeeze in some extra time off, even if they reason for a particular absence really isn’t because of their condition. Employees have tried, in fact, to take FMLA leave for the following reasons:

  • Attend Beyonce concert
  • Drink at a bar
  • Go golfing
  • Participate in a fishing contest

These situations ended up in court, as the employers involved got wind of what the employees were doing while on this so-called FMLA leave and denied the FMLA protections. The employees were then subject to the employer’s policies. The employees often revealed their shenanigans on social media, giving employers evidence to back up their reactions.

In other situations, employees who have an FMLA-certified condition have told coworkers that they believe they will have a flare-up of their condition in the near future. This often occurred after they have been turned down for paid time off for that same time. Coworkers don’t always keep such information secret.

Friends, employees who generally take unforeseen intermittent leave are still restricted to taking that leave only for the qualifying reason — usually a medical condition. if you receive information that casts doubt upon the employee’s stated reason for an absence, such as those listed above, don’t jump to termination. Instead, ask the employee to explain his or her behavior. This also provides you with the opportunity to request a recertification supporting the leave.

Asking for a recertification can also help give more strength to your argument, as the FMLA generally expects you to ask for a recertification in such a situation. You may ask the doctor if the absence/behavior is in line with the employee’s condition and need for leave. If the employee cannot refute the evidence, you could terminate on the basis of FMLA leave abuse; otherwise known as fraud.

You are not without recourse when it comes to employees trying to abuse the FMLA system. Keep your eyes peeled and your ears open for clues that might trip them up.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.