FMLA Fraud: Guide for Employers

Employers understand the importance of the Family and Medical Leave Act (FMLA). When it’s used correctly, it protects employees during serious health events or family-related crises without sacrificing their job security. But when it’s abused, it can disrupt operations and create real legal risk.

The challenge is that FMLA fraud doesn’t always look obvious at first. And responding the wrong way, even when your instincts are right, can expose your business to retaliation claims or Department of Labor (DOL) scrutiny.

Here’s what you need to know about spotting potential fraud, responding lawfully, and protecting your workplace without overstepping legal boundaries.

Why FMLA Abuse Happens—and Why It’s Tough to Prove

FMLA provides job-protected unpaid leave for a qualifying employee dealing with a serious health condition, caring for a family member, or addressing specific family situations like the birth of a child. Most employers are careful to comply. But some employees see the program as an opportunity to exploit flexibility without oversight.

Fraud can show up through:

• Exaggerated or false medical claims
• Use of intermittent leave to create long weekends or avoid certain shifts
• Mismatched behavior (e.g., heavy manual labor while supposedly out for back pain)
  Refusal to recertify leave after multiple requests

Even when patterns raise concern, employers hesitate. The line between skepticism and interference is narrow, and crossing it can lead to liability. That’s why your response has to be informed, structured, and legally sound.

How FMLA Abuse Impacts Your Workplace

When fraud goes unchecked, the cost isn’t just financial. It ripples across your team culture, staffing, and credibility.

• Scheduling gaps can force overtime, increase turnover, or reduce service levels
• Team morale can suffer when coworkers see someone “getting away with it”
• Management confidence may erode when clear abuse is met with inaction
• Claims of favoritism can arise if FMLA abuse is suspected but inconsistently addressed

And if the situation escalates into formal discipline or termination, documentation and compliance gaps can make defending the action harder than it should be.

What Employers Can Ask—Without Overreaching

You’re allowed to ask for enough documentation to verify the legitimacy of the leave—but you can’t dig beyond what the law permits.

Here’s what the FMLA allows you to request:

1. Initial Medical Certification

After an employee gives notice of leave, you can require a completed medical certification form within 15 calendar days. It has to establish that the condition qualifies under FMLA standards.

2. Second and Third Opinions

If you doubt the validity of the certification, you’re permitted to pay for a second opinion. If the second opinion conflicts with the first, a third provider—agreed upon by both sides—can settle the question.

3. Recertification

You can request recertification:

• Every 30 days in most cases
• When the minimum duration has passed
• When circumstances change (e.g., increased frequency)
• If you receive information that casts doubt on the need for leave

You can’t ask for a full diagnosis or details beyond what’s necessary to confirm leave eligibility. And you can’t retaliate or penalize someone for using approved leave, even if it’s inconvenient.

Warning Signs That Deserve Closer Attention

Not every odd pattern is abuse, but consistent red flags may justify further review. Some of the most common signs include:

• Repeated absences before or after weekends, holidays, or known high-demand periods
• Visible social media activity that contradicts the stated need for leave
• Refusal to provide recertification despite major changes in frequency
• Discrepancies between what the employee tells coworkers and what they reported formally

That doesn’t mean you’re entitled to deny the leave or take disciplinary action right away. It means you have reason to verify, document, and—if necessary—investigate.

FMLA Fraud Investigations: What They Actually Involve

When concerns reach a certain point, some employers choose to open a structured review. FMLA fraud investigations have to be handled with precision. Any deviation from federal guidelines can flip a legitimate concern into a retaliation claim.

Here’s what a compliant investigation might include:

Documentation Review

Check the original certification, any recertifications, attendance records, communication logs, and any PTO overlaps. Confirm that every request and response has been documented consistently.

Third-Party Surveillance

Some employers hire outside firms to observe employees during scheduled leave, which is legal in many states but should be done only with legal guidance. The observation has to stay within lawful bounds—no intrusion or harassment.

Internal Interviews

Coworkers can report inconsistencies or direct statements made by the employee. Reports should be recorded factually and kept confidential.

Medical Record Subpoenas (in limited cases)

You can’t demand medical records outside the certification process. But in legal proceedings, subpoenaed records may reveal inconsistencies. Never try to obtain these without legal counsel.

Any findings need to be weighed carefully. Even if you have evidence of misuse, it doesn’t always lead to a clean termination. The investigation has to show not just poor judgment—but intentional misuse or clear violation of leave terms.

When Termination Is Defensible—and When It Isn’t

You can discipline or terminate an employee who:

• Provides false information on a certification
• Takes leave under false pretenses
• Violates company policy while on leave (e.g., working another job when restricted)

But terminations should be handled with airtight documentation to avoid wrongful termination claims. Courts have sided with employees when:

• Employers acted too quickly without evidence
• Discipline appeared retaliatory
• The fraud was suspected but never clearly proven

Timing matters too. If you terminate immediately after someone takes or requests leave, that can trigger suspicion—even if unrelated.

When in doubt, speak with employment counsel before moving forward. The stronger your process, the more confident you’ll be if a claim arises later.

Policies That Help Prevent FMLA Abuse

Strong internal policies can prevent many of the headaches associated with FMLA misuse. These don’t need to be harsh—just consistent and clear.

Maintain a Clear Leave Request Protocol

Use written forms and standardized communication to avoid “he said, she said” confusion.

Educate Employees on What FMLA Covers (and What It Doesn’t)

Many misunderstand what qualifies. Clear education up front helps reduce unintentional misuse.

Require Certifications and Recertifications Consistently

Make sure every request follows the same steps—regardless of who makes it.

Keep Detailed Attendance and Communication Records

Leave history, call-in patterns, and supervisor notes should be available when concerns arise.

Don’t Hesitate to Escalate—Carefully

If patterns persist, escalate to HR or legal—not to a hasty confrontation. FMLA fraud investigations are only useful when done with care.

Why Consistency and Culture Help Prevent FMLA Abuse

It’s easier to spot and prevent abuse in a workplace where policies are followed, documentation is kept, and exceptions are rare. On the other hand, inconsistent enforcement or informal handling of leave opens the door for manipulation. There are a few key principles that go a long way. 

• Be consistent. Everyone’s request goes through the same process
• Be clear. Leave expectations should be outlined and acknowledged
• Be cautious. Avoid off-the-record warnings or confrontations
• Be documented. If it wasn’t written down, it’s hard to defend

Taking Action Against FMLA Abuse Starts with the Right Process

FMLA fraud doesn’t have to go unchecked—but acting on suspicion alone creates more problems than it solves. Employers who respond with structure and documentation are far more likely to resolve issues without triggering legal fallout.

The best time to protect your company is before any requests are made. Clear policies, consistent enforcement, and thorough records create the foundation for action later.

When concerns do arise, focus on facts. Gather the documentation, follow internal procedures, and involve qualified HR or legal support as soon as possible. That measured approach separates justified action from a costly misstep.