May 19, 2024

politics of law

Politics and Law

When You Find Out Your Employee’s Medical Leave of Absence Was Really Spent at Disneyland

4 min read

Dishonest workplace absences are nothing new. In fact, over 30 per cent of employees have called in sick when they’re not actually sick, according to a national CareerBuilder survey of more than 3,400 workers across varying industries and company sizes.

Outside of one-to-two day medical leaves, what can employer’s do when faced with a long term medical leave of absence that might be fraudulent?

Back to Bob Smith, for example. There’s no debating that Diane Jones does have a new Disney coffee mug sitting on her desk. But how should the employer handle the situation?

Before accusing Bob of ditching work for the theme park, first verify what is correct and current:

  • Is it possible Bob ordered the gifts on line?
  • Is it possible the gifts had been sitting in Bob’s closet since his last vacation?
  • Were the gifts really even from Bob? Is there nefarious intent on the co-workers part in revealing this recent ‘gift’ information?

Unfortunately, most employers don’t have the time or the resources to enact detective-like investigations when determining the legitimacy of absences. The key in these medical leaves is to look at the surrounding circumstances to determine if the illness really does exist instead of simply taking the employees word for it.


The easiest way to begin controlling absenteeism is by review of your current policy manual. What wording do you have in place that addresses attendance? Do you have anything written at all? Some companies require employee’s to call a call-off line when reporting an absence; others require a physician’s statement of return-to-work if absent for three or more days. Still other practice an intensive up front Q&A with the absent employee: [Will they see a doctor for their illness? What duties of the job can they not perform? The specific reasons for the absence? When do they anticipate returning to work? Etc.]. Is there content available within your policy that clearly defines what is considered excessive absenteeism?

Employers who mark their line in the sand up front with new employees often have a less difficult time later in the employee’s tenure. Establishing, promoting and enforcing policy with all employee’s, however, may make a drastic impact on overall daily attendance.

But what of the extended medical leaves of absence? Those leaves that continue beyond one or two days? Are those employee’s automatically eligible for FMLA?


FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:

• Incapacity due to pregnancy, prenatal medical care or child birth;

• To care for the employee’s child after birth, or placement for adoptions or foster care;

• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or

• For a serious health conditions that makes the employee unable to perform the employee’s job.

The Family Medical Leave Act was enacted to protect workers who might otherwise be terminated as an indirect (or direct) result of serious medical or pregnancy/child-related issues.

But are these leaves enforceable? What rights do employers have to ensure extended medical leaves covered by FMLA are legitimate? Before you throw in the towel and start giving Bob your Disney wish list, consider the following:

1. You can ask for medical certification. This means your employee must submit documentation from a certified medical professional. There are certification forms available for both an Employee’s Serious Health Condition and a Family Member’s Serious health Condition [both forms can be found HERE ]. Make sure to include the employee’s job description when submitting these forms to the physician.

2. You may seek additional clarification by your own physician.

3. You may establish an enforceable and reasonable recertification – which means the employee has to perform Step 1 as many times as the recertification applies.

4. You may require a personal certification. This means the employee acknowledges the reasons he or she is taking a FMLA-related medical leave. If it is determined that a person has taken leave that is inconsistent with his or her personal certification this could be grounds for discipline.

As with all policy, enforcement should be fair and equal. Don’t give one employee all of the paperwork and another employee only a few forms. Keep all FMLA documentation in a separate FMLA folder in your medical drawer. If you do elect to keep FMLA certification forms in an employee’s medical folder make sure it is clearly identifiable as certified FMLA paperwork.

While most extended medial leaves are legitimate and necessary, fraudulent misuse of these leaves and FMLA abuse are “popular” enough to warrant several forum discussions and employer confusion and frustration.

Avoid misguided attempts at discipline until you have all the facts, documentation, and an air-tight case of fraudulent abuse. Even then, proceed with caution.

*All names in this article are fictitious. This article should not be construed as legal advice. If you think an employee is misusing a medical leave of absence or abusing FMLA, contact a FMLA attorney to discuss your options and employer rights.

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