Ask a human resource professional weary of questionable leave requests under the Family and Medical Leave Act ("FMLA") if the Act fairly balances the interests of employers and employees, and the likely answer is that the scales tip decidedly against the employer. While this belief is an understandable response to persistent problems with the FMLA, the employer does have options.
The statute itself, the Department of Labor ("DOL") regulations and case law reveal various practices employers can use to control abuse of FMLA leave. To be sure, none of them are a silver bullet, and not all will be appropriate for every employer given differences of workplace policies, practices and particular problems encountered. These tools, however, offer some means by which employers can improve FMLA controls and reduce abuse. Employers should review their FMLA policies and procedures in light of the statute and regulations as well any applicable state or local law, and consider revisions.
One item to consider is a prohibition on material misrepresentations in connection with the use of leave. Courts have rejected employees' FMLA claims in cases in which the employee lied to or misled the employer or falsified leave documentation. See, e.g., Kaylor v. Fannin Reg'l Hosp., 946 F. Supp. 988 (N.D. Ga. 1996) (discharge upheld where evidence established employee lied and misled employer). In addition, the DOL regulations make clear that the statutory provisions for job restoration and maintenance of health benefits do not protect the employee who fraudulently obtains FMLA leave. 29 C.F.R. ยง 825.312(g).
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