The FMLA (Family and Medical Leave Act) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period, for specific family or medical reasons. However, these protections are only available if an employee uses FMLA leave “for the intended purpose.” This can be an issue in FMLA retaliation cases if an employer can show it had an “honest suspicion” that the employee did not take leave for the intended purpose, or otherwise engaged in FMLA abuse.

As recent federal cases have discussed, an employer doesn’t have to “conclusively prove” the employee abused FMLA leave by using it for a non-intended purpose. If an employer has an honest suspicion of FMLA abuse by an employee, it is important to handle the situation carefully and in accordance with the law to avoid potential legal issues.

Investigate and Gather Additional Information

If FMLA abuse is suspected, the employer should conduct an investigation to gather all relevant information about the employee’s use of FMLA leave. The investigation should be conducted fairly and objectively, and the employer should keep detailed records of the investigation. As part of that investigation, an employer may need to request additional information from the employee’s healthcare provider to determine whether the employee’s condition qualifies for FMLA leave.

Give the Employee an Opportunity to Respond

If the employer is able to gather sufficient evidence to support their suspicion of FMLA abuse, they may confront the employee and provide them with an opportunity to respond to the allegations. Of course, if the employer determines that the employee has indeed abused FMLA leave, they may take appropriate disciplinary action, which could include termination of employment. Again, it is crucial to document everything.

It may also be wise to consult with legal counsel before taking any action. Legal counsel can advise the employer on the best course of action based on the specific facts of the situation and the relevant laws. It is important for the employer to handle the situation with sensitivity and respect for the employee’s rights, while also protecting the company’s interests.