Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”). After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.
Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee. If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.
Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:
- Have a solid basis for initiating an investigation. FMLA investigations should not be undertaken simply because an employee is using, or even exhausting, his or her FMLA leave. Rather, an investigation is appropriate only if there is a reasonable basis for believing an employee is somehow misusing FMLA leave, such as lying about having a serious health condition or using leave for