As an HR consultant and educator in the HR profession, I get a lot of questions that sound like this:
“So, Natalie, we’ve got this employee, Valerie, who is approved for intermittent FMLA…and, well…she has a habit of when she doesn’t get a PTO day approved by her supervisor, she later just calls in sick on that same day (one she originally wanted off) using FMLA, saying that she ‘has a migraine’ and can’t come in. The issue is that when the PTO request is denied by the supervisor, it’s because too many other people are scheduled off, but she uses FMLA as the reason, so she can get the day off she wants. This leaves us really short staffed and sometimes we even have to mandatory other employees to work overtime, which is creating a huge morale issue. We know Valerie’s playing games, but what can we do about this?”
Hmmm, sounds like a FMLA gamer to me! In my book How to Conduct Internal Investigations: A Practical Guide for HR Professionals, I discuss this “gamer” situation at length. However, let me get back to my client’s question about his particular gamer… The first thing I advised him to do was go back to the FMLA Certification that they have on file to review exactly what the doctor stated in the WH-380E Certification document. He did that, and she was approved for episodes of migraine headaches, up to a possible 9 days per month, with each episode that could potentially last up to 3 days.
So, I asked how frequently she’s calling in, citing a migraine and the need to take FMLA intermittent leave. He told me that she calls in about 3-4 days per month, but only once every other month or so she calls in on a day that she had previously requested PTO for that same day. I then reminded him that if the doctor’s certification indicated frequency of up to 9 days per month–and they accepted the certification document knowing that–that the employer is essentially “stuck” with this case for the time being. Essentially, they accepted a certification document that gives her ability to take off up to 9 days per month, worst case scenario with the maximum days she’s allowed. However, what I did tell him was that the pattern of her absences is what he could investigate.
I then asked if he had a time and attendance system that would enable him to track the specific days she requested PTO, but later called in using FMLA citing a migraine. His answer was, “Well…no, not really. We’d have to go back and look at that manually.”
My response to him was that, for starters, the organization needs to get more robust analytics in order to manage FMLA effectively. I recommend he obtain a software solution to eliminate the manual Excel spreadsheet process. However, for the immediate case at hand, it was going to require digging into the data to identify patterns to see if the PTO-requested-days aligned with the calling-in-FMLA-citing-a-migraine days. He then said, “What do we do once we have that data and it does show a pattern?” Ah, now this is where it gets interesting!
I told him what happens then is going to be up to him and his legal counsel. In my experience, taking action to investigate FMLA abuse is dependent upon each organization and how much risk tolerance legal counsel chooses to take. If it were me investigating this case, I would pull all the data and do a correlation analysis to see if I do have a true fact pattern that appears, on its face, to be fraudulent. If I felt I had that, my next step would be to have a chat with legal counsel regarding using an external, private investigate to conduct surveillance. If so, I would then hire a private investigator to set up surveillance on the days the employee calls in sick, citing FMLA for a migraine headache.
The private investigator would be given the employee’s work schedule and would conduct surveillance during those hours, to determine if the employee leaves her home and performs activities that she would clearly not be capable of doing if she were truly suffering from a migraine episode. As an example, if the doctor stated on her certification that she has to “avoid light, noise, sunlight, and cannot drive while taking medication” but we see girlfriend out driving, shopping, getting a manicure, and then leaving on a cruise… Well, the physical evidence captured on video will be quite compelling.
Now, having said that, some organizations take a much softer stance on FMLA abuse and just simply “don’t go there” for fear of the risk of an interference claim or potentially even invading an employee’s privacy. Having managed large groups of employees in my career, I am a bit more aggressive at catching FMLA gamers because of how they affect everyone else at work. They are causing a negative impact to other employees, by causing them to be restricted in their ability to schedule vacation time, have time off with their kids and, in some cases, the FMLA gamers cause other employees to have to pull overtime shifts. This is especially so when the FMLA gamers call in the very same day for a 10 or 12-hour shift, which is often prevalent in hospital and health care environments.
What ultimately happened with “Valerie” is that the pattern of her PTO requests didn’t align closely enough with the calling-in-FMLA-with-a-migraine days to meet the “reasonable person” standard. In other words, her call-ins were too sporadic for any reasonable person to draw a correct conclusion. Was it fishy? Sure. However, what was even more interesting after looking at the data was the frequency of her taking time off. It was identified that there was a 45% correlation in FMLA-migraine-call-off days that coincided with her scheduled off days. As a health care employee, she worked a lot of various shifts with off days that changed, so it took really working the data manually to figure out the pattern. Nevertheless, they identified the pattern over a period of about six months and legal counsel supported hiring a private investigator. As an aside, other employees had come forward around this same time to complain that “Valerie isn’t really having a migraine…she just needed the day off…and it isn’t fair…” Additionally, Facebook postings were obtained and entered into evidence. So, there was a correlation with the attendance records of FMLA intermittent days off correlating to scheduled off days, the date of a Facebook posting (on a day she called in FMLA-with-a-migraine) which showed her standing on the front deck of a harbor cruise along with her daughter…as well as several days of video surveillance. The investigator captured her on video performing activities she wouldn’t be able to do if she had been legitimately suffering from a migraine headache. It was obvious she had been fraudulent.
The bottom line is this: It is possible to investigate FMLA Abuse. And, it is possible to collect enough evidence to support terminating a FMLA gamer. However, it requires a collaborative effort on behalf of the leadership team, the HR team, and the legal counsel to establish a sound, investigative strategy. The idea is to develop a strategy that will minimize the risk of an interference claim, while at the same time gather enough physical and documentary evidence to show a fact pattern that proves the employee was fraudulent in the use of FMLA.
Oh, by the way… Valerie was so fired. ;o)
Until next time…
Natalie Ivey, MBA, SPHR, SHRM-SCP is President & CEO of Results Performance Consulting, Inc. an HR consulting practice in Boca Raton, FL