Thursday, March 25, 2010

Fraud in Use of Family Medical Leave Act (FMLA)

I've previously written about the ever more onerous burdens being forced on employers, the most recent of which is Obama's health care package. It will force employers to pay much of the cost for the 30 million newly covered people as well as the 12 million illegal immigrants who will be covered when President Obama fulfills his promise to legalize them. (Covering them, as I've discussed, with the same number of doctors, nurses, MRI machines, operating rooms, etc., will put our lives at risk. But I digress.)

The costs of good-sounding employee protections are enormous. But one cost I had not thought about was abuse of the Family Medical Leave Act--that is, until a career counseling client told me that her boyfriend wanted to take her to Tahiti for a month but she had used up her vacation days and was afraid of losing her job if she took the month off. So she got a friend of hers, a psychotherapist, to write a note that said that because of a flareup of her uncle's manic depression, she would need to take a month off to take care of him. It worked, with her co-workers left to scramble to get her work done for her.

That made me curious: How unusual is such fraud? So I googled "FMLA fraud." In just five minutes, I uncovered all the following:

Postal worker, Vincent Dawidowicz, doctored
(pardon the pun) a short-term excuse note from a doctor to say Vincent suffers from a lifetime condition for which he needs to take two to three days of FMLA leave once or twice a month indefinitely.

An employee asked for FMLA because her adult daughter was having surgery (At that site, scroll down to see the report) and requested her mother be with her during the recovery. The employer granted her request for FMLA leave. In fact, the employee took the time off to have her own breast augmentation surgery, which because it's cosmetic, is not covered under FMLA.

Some employees are hardly-miss-a-day employees but as soon as they reach the requirement of having worked 1250 hours, they demand FMLA (The most common excuse is migraines because they're hard to detect and can require lots of intermittent leave.) Many such employees just happen to require 12 weeks of leave each year--the maximum allowable amount. For example, one employee leaves early most Fridays because her son "had a panic attack." The HR person said, "Seven of my employees said she boasts about her abuse of FMLA."

Some employees take FMLA the same week every year, or always seem to have that medical flare-up between Thanksgiving and New Year. One employee had a parent in Italy who got sick every summer.

Abuse of the FMLA (as well as Americans with Disabilities Act, discrimination laws, etc., ) can be dispiriting to honest coworkers, make it difficult or impossible to get the work done, and deals another blow to our ever less ethical society. How might employers reduce the risk of FMLA abuse?

Verify the excuse letter's legitimacy by phoning its author. For requests for long-term and intermittent leave, require periodic updates from the health care provider. Alas, that isn't foolproof. One HR person wrote, "We have a doctor in town who will basically fill in whatever the patient wants."

If you suspect an ongoing malingerer, it may be worth the cost of hiring a private investigator to surveil the person's home for a day or two. The employee's complaint of a bad back flaring up would be called into question if the P.I. sees him loading golf clubs into his car. Of course, he'll probably claim his back was better by then.

With nearly all government giveaways, not only is there tremendous potential for abuse, it is very difficult and expensive to stop. That's why despite everyone knowing there's long been billions of dollars in fraud, waste, and abuse in Medicare, welfare, government contracting, indeed in most government programs, no one's been able to significantly reduce it. And anyone claiming that significant savings in the new health care bill will come from curtailing fraud, waste, and abuse, is virtually, well, fraudulent.


Anonymous said...

Whenever something "mandatory" is implemented, people will figure out legal or illegal work-arounds.

My employer began mandating time clocks for low-level employees like myself in my department this week. The day before it was due to begin, one of my coworkers - who is always behind in her work, is constantly taking personal calls, and is in my opinion lazy overall - told me out loud how she planned to work around the time clock. I heard her laughing about it with another coworker just now.

Congress has already gotten themselves around the recently-passed health care bill, by exempting themselves and their employees from it.

I fully expect there will be fraud & waste with this new bill. I'd never believe otherwise. "Honest and hard-working" do not come to mind for me when I think of people conditioned to getting free handouts from the government.

Not that that's the only place fraud & waste will come from. Dishonest doctors who either see an opportunity or those who are making less money than before may partake as well. (Some might try to takes themselves out of the mess altogether like this doctor, but I don't know if that's legal, either.)

Businesses who have a certain number of employees will be required to provide health care for all of them. Some of those businesses might hire employees and keep them off the books or pay them in cash to avoid that rule and save in taxes, like many employers already do with illegal immigrant employees.

I suspect that even though there will almost certainly be fraud & waste, Congress and the president simply did not care about that. It's a small cost to pay for the power they've fought so hard to get for almost a century.

Anonymous said...

Interesting your comments (Marty) on FMLA. It has never been a problem for any company I've worked for because it is unpaid. Same with maternity leave - nearly everyone uses the paid time, but once it's unpaid, almost no one.

Paid benefits/anything - different story. Discouraging.

Anonymous said...

Every HR person should read this post!

Marty Nemko said...

Thanks, Anonymous. As a result of your comment, I've adapted it and submitted it to HR Magazine. We'll see if they agree that "every HR person should read it."

Cornhusker said...

You may not have to worry about FMLA much longer.

"U.S. healthcare reform is boon for India outsourcing companies"

With 22 pen strokes, President Obama signed into existence not just a historic healthcare reform law but also monumental piles of paperwork: New member registration forms. More claims. Ever-expanding databases. And on top of that, pressure to cut costs.


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