Skip to Main Content

Keeping you informed

Carefully Evaluate Evidence Before Concluding FMLA Fraud

    News, Client Alerts
  • February 11, 2022

Here is a situation we see on occasion: An employee asks for time off for a planned Disney World vacation. The employer declines the request on the grounds that the requested dates interfere with critical business operations. The employee is clearly upset about the decision, and the day before the vacation is scheduled, she gives the employer a doctor’s note stating that she needs to be out of work for one week due to stress and anxiety. The employer grants the leave under its FMLA policy, and the next week, a co-worker shows her supervisor Facebook pictures of the employee enjoying the Magic Kingdom.

The next Monday, the employer fires the employee for lying and abusing the company’s FMLA and sick leave policies. A few weeks later, the employer receives a demand letter from an attorney claiming that the company violated the employee’s FMLA and ADA rights. The employer contacts us and asks whether they have a slam dunk case of fraud. Unfortunately, the answer may not be clear.

The employee’s Florida trip may be consistent with her doctor’s recommendations to address the stress and anxiety. FMLA leave does not mean that an employee is confined to his or her home. The timing of the leave following the vacation denial is certainly suspicious, but what evidence did the employer develop to prove the employee’s intent?

In these circumstances, before taking action, the employer should conduct a thorough, documented investigation of the situation. Typically, this means talking with the employee and asking questions about the timing of the medical leave. Did the employee make vacation reservations after the request was denied, but before the purported medical issue arose? If so, this is an indication that she intended to take the time off regardless of the employer’s initial decision. When were the Facebook pictures taken? Were these old photographs recently posted to the employee’s page? Ask the employee for follow-up information from their doctor regarding the compatibility between the diagnosis and the Florida trip.

The employer should only conclude that the employee has engaged in fraud following the investigation and development of evidence that supports this position. A knee jerk reaction to fire the employee may end up involving the company in a lengthy and expensive legal battle.