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.