Don’t Let Employees Abuse FMLA Claims

Posted November 18, 2016 by Mary McGinley

FMLA or the Family Medical Leave Act was put into place for employees to be able to take care of themselves or ailing family members without facing repercussions from their employers. It has been a godsend to those who have truly needed it. However, there may be times when an employee might try to abuse it.

According to Jon Hyman, partner at Meyers, Roman, Friedberg & Lewis in Cleveland and regular contributor to, often employers will tread too cautiously when handling FMLA leave claims. In spite of this tendency to err on the side of caution, if a matter goes into litigation the court will often side with employers when abuse of FMLA is uncovered.

Such was the case of one employee of United Airlines who requested time off for a two week period that coincided with his wife’s approved vacation time for an out of the country trip. The employee was unable to secure the full time off and had to be back at work in the middle of the vacation.

Since the worker did have a medical certification on file with United for an anxiety disorder, on the morning he was scheduled to return, he called United from where he was vacationing to claim FMLA leave for that day. He later tried to convince a supervisor that his anxiety issue had arisen for not having been able to schedule a return flight so that he could be back at work.

United Airlines investigated the employee’s invocation of FMLA while he was still on vacation. Upon his return, United informed him that the intended to terminate his employment with the company for dishonesty and abusing FMLA leave. The employee resigned and filed an FMLA retaliation lawsuit against United.

The court sided with United in this case because of the worker’s attempt to use the leave inappropriately and determined that Sharif’s FMLA retaliation lawsuit had no merit.

FMLA serves a purpose and fills a need for those workers who legitimately need it. The law says that a company may not deny valid requests for leave, nor can it use allegations of dishonesty as a pretext for subsequent retaliation. Even with that, however, it is essential that companies do all that they can to prevent FMLA from being abused.

Hyman suggests that employers use the FMLA’s re-certification processes to your advantage. He reminds managers that an employer can request a medical re-certification every 30 days except when the certification indicates that the condition is to be more than 30 days. If the period is longer, the employer must wait until the duration expires.

If the certification is for a period longer than 6 months, even if it is a lifetime, the employer may still request a recertification every six months.

For the full text of Hyman’s suggestions, you can read it at

As a company You want your valued employees to be able to take FMLA whenever they need it in order to take care of themselves and their families. Unfortunately, however, you also don’t want the policy to be abused either.

At EinsteinHR, we help companies not only attract, hire and retain their top talent, we help them with personalized HR advice that is current and in compliance with the law. Contact us today to find out how we can help and get a quote. You can reach us toll-free at 770-962-1700 (EMC2).