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Employment Resources


By April 1, 2009No Comments

The Family and Medical Leave Act (FMLA) requires covered employers to grant eligible employees up to 12 weeks of unpaid leave during a 12-month period for specified family- and medical-related reasons. Although administration of FMLA leave associated with the need to care for a newborn or newly adopted child can be quite straightforward, handling leave requests based on an employee’s own serious medical condition, or the need to care for an immediate family member with a serious medical condition, can be more complicated, when questions about the authenticity of the medical reason present themselves.

In any company, most employees will respect the rules and only request FMLA leave when they need and are legally entitled to it. But as any employer knows, there always seem to be a few employees who try to bend the rules and play the system. What can employers legally do to minimize abuse of FMLA leave requested for medical reasons?

A first step in dissuading attempts at fraudulent FMLA medical-based leave is to require that employees document the need for leave with medical certification. An employer may require that, for any leave taken due to a serious health condition, the employee provide a medical certification confirming that a serious health condition exists. Certification may be requested whether the stated reason for the leave request is the medical condition of the employee or of an immediate family member. The employee must be allowed at least 15 calendar days to submit the certification.

When the employee supplies the certification, examine it to determine whether it does in fact document a serious medical condition, and whether it is complete and authentic. If the certification is incomplete, require that the employee correct it. If you have any suspicions about the authenticity of the stated reason—for example, if you suspect that the health care provider may be exaggerating the seriousness of the medical condition at the request of the employee—the law allows you to require the employee to submit a second certification. This is at company expense, and you can choose the provider for the second opinion. If the opinions conflict, the employer can require a third — and final — certification.

Of course, certifications that do support the employee’s or immediate family member’s serious medical condition should result in leave approval, just as those that do not document this should result in the leave request being denied.

An area that can cause particular frustration for employers involves requests for intermittent leave. FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule when medically necessary to care for a seriously ill family member, or because of the employee’s serious health condition. To get a handle on whether any employee might be abusing this FMLA leave provision, look for patterns in employees’ FMLA leave requests. Does the employee’s medical condition always seem to flare up on Mondays, Fridays, or days preceding and following holidays? Do intermittent leave requests always coincide with school holidays, or certain weeks in the summer? Employees who require or desire time off work during such times should not be looking to FMLA to provide it. Employees who do legitimately need intermittent leave for foreseeable medical reasons should work with their employer to schedule leave so as to not unduly disrupt the employer’s operations.

Although implementing strategies to combat FMLA fraud, it’s also important that your business doesn’t suffer when employees are out on FMLA leave, whether legitimately or not. If your business has a pattern of FMLA-based absences at noticeable times, schedule workers accordingly.

Correct administration of FMLA leave is an important compliance issue for employers. Lengthy final regulations were issued by the Department of Labor in late 2008, and were effective January 16, 2009. These regulations include provisions on establishing a “serious health condition” and clarifying administration of intermittent and reduced schedule leave, and on what employers can do regarding inadequate medical certifications.