FMLA Fraud Investigations: Employer Rights and Limits
The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 weeks of unpaid, job-protected leave each year for specific family and medical reasons. Covered employers include private-sector employers with 50 or more employees, public agencies, and most schools. The law protects employees dealing with serious health conditions or qualifying family events, but it also gives employers the right to act when there is reliable evidence of misuse.
Key facts about how FMLA applies:
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Applies to employees who worked at least 12 months and 1,250 hours at a site with 50 or more employees within 75 miles
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Covers leave for an employee’s serious health condition, certain family care needs, childbirth or adoption, and some military-related reasons
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Provides 12 weeks of leave per year, or 26 weeks for military caregiver leave
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Requires continuation of health benefits and job restoration after leave, unless a valid exception applies
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Enforced by the U.S. Department of Labor under 29 C.F.R. Part 825
What Counts as FMLA Abuse
FMLA abuse occurs when an employee misrepresents the need for leave or uses approved leave in a way that contradicts the condition it was granted for. The law protects employees who use leave for qualifying reasons, but it does not shield those who provide false information or misuse medical certifications.
Conduct that may indicate abuse:
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Taking intermittent leave for a claimed medical condition while engaging in physical activity that contradicts stated limitations
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Submitting altered or inconsistent medical documentation after a previous certification was denied or questioned
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Reporting inability to work while performing outside employment or physically demanding tasks that raise doubt about the underlying condition
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Claiming leave for treatment or incapacitation while regularly missing only weekends, Mondays, or Fridays
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Receiving third-party reports or social media content that contradicts the certified reason for leave
Why FMLA Abuse Poses a Risk to Employers
Operational and Workplace Impact
When employees abuse FMLA, it can strain teams, lower morale, and create a perception that workplace policies are optional. Employees who follow the rules may lose trust in the system when they see others take advantage of it without consequences.
Consequences for the broader workforce and day-to-day operations:
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Supervisors may need to adjust staffing on short notice to cover questionable absences
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Repeated misuse can leave shifts uncovered or delay key projects
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Failure to act on known abuse may lead to broader policy noncompliance
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Perceived unfairness can trigger internal complaints or increase turnover
Legal Exposure from Mishandling Abuse
Employers who overreact to suspected abuse or skip required steps expose themselves to legal risk. Terminating or disciplining employees without clear, documented evidence and a consistent process increases the chance of FMLA retaliation or interference claims.
Missteps that increase employer exposure:
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Taking action based on suspicion without verifying facts
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Inconsistent enforcement across teams or roles
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Weak or missing documentation
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Disciplinary decisions made close in time to FMLA use without a clear, unrelated justification
What Federal Law Allows Employers to Do
Employers may investigate suspected FMLA abuse if their actions are based on documented facts. The law allows discipline or denial of reinstatement when there is credible evidence that leave was obtained through fraud or misrepresentation.
Some key points from the FMLA (29 C.F.R. § 825.216(d)):
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An employee who fraudulently obtains FMLA leave is not entitled to job restoration
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Action needs to be based on documented evidence—not patterns, assumptions, or suspicion alone
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The U.S. Department of Labor confirms employers may act when the decision is supported by facts
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Termination does not violate the FMLA when supported by a fair process and complete documentation
Limits That Protect Employees with Legitimate Needs
Employers have the right to investigate fraud, but they cannot penalize employees for using approved leave. The FMLA prohibits employer actions that interfere with an employee’s right to leave or punish them for using it, even when the timing is inconvenient or the absences are frequent.
Legal limits that apply—even when employers suspect abuse:
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Employees cannot be disciplined solely for using FMLA leave
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Absence patterns that align with weekends or busy periods are not grounds for action if supported by valid certification
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Requiring additional explanations beyond what the FMLA allows may be treated as interference
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Disciplinary action taken soon after FMLA leave—without unrelated, documented misconduct—may support a retaliation claim
Scenarios That May Justify an FMLA Investigation
Attendance Patterns That May Warrant an FMLA Review
Supervisors and HR personnel are frequently the first to notice when FMLA leave is used in ways that differ from what was certified. Certain patterns—especially when they repeat over time or closely follow denied time-off requests—may suggest the leave is being used for reasons unrelated to the approved condition. Though these patterns do not prove abuse, they can justify further review if supported by objective documentation.
Examples of patterns that may warrant a review:
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Absences that regularly fall before or after weekends or holidays
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FMLA leave requests submitted soon after a denied vacation or PTO request
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A sudden increase in frequency or duration that conflicts with the certification
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Leave that consistently overlaps with high-demand shifts or unpopular assignments
Certification and Documentation Problems That Raise Compliance Questions
FMLA regulations allow employers to request medical certification to support a leave request. Certification documents—usually completed by the employee’s healthcare provider—outline the nature of the condition, the expected duration of leave, and whether the employee can work or perform specific tasks. Although legitimate changes can occur, unexplained revisions or inconsistent information may justify closer review under the law.
Examples of certification issues that may warrant review:
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Revised certifications submitted after a prior version was rejected or returned as incomplete
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Notes that materially contradict earlier submissions without explanation
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Certifications missing key details required under 29 C.F.R. § 825.306
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Forms that appear altered or inconsistent with prior documentation
Activity That Conflicts with the Stated Condition
Employers may become aware of conduct that appears inconsistent with the medical limitations described in an employee’s FMLA certification. Conduct could include physical activity, outside work, or public appearances that directly contradict the reason leave was approved.
Examples of activity that may warrant further review:
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An employee certified as unable to stand for extended periods is seen walking or working a shift at another business
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Social media posts show the employee performing physical tasks that contradict listed restrictions
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Coworkers report seeing the employee doing work that the certification says they are medically unable to perform
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An employee certified as incapacitated engages in side work involving the same duties they are restricted from performing at their regular job
What a Lawful FMLA Abuse Investigation Looks Like
Build the File Before Acting
Employers should not act on suspicion alone. Before initiating any investigation or disciplinary action, they should compile a detailed record of what was known, when it was known, and how it relates to the employee’s certified condition.
Documentation that supports a lawful investigation:
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Time-stamped emails or messages related to leave requests, scheduling, or disputes
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Disciplinary records that predate the suspected misuse
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Screenshots of public social media showing activity inconsistent with medical restrictions
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Written reports from managers or coworkers with dates and observed behavior
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Certification forms showing changes submitted after denied requests or performance concerns
Ask the Right Questions the Right Way
When follow-up is necessary, employers may ask questions to clarify whether leave is being used in line with the certification. Conversations should not include medical questions or challenge the legitimacy of approved leave.
Questions that stay within legal limits:
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Was your recent time off related to the condition in your current certification?
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Have there been any changes to the schedule or limitations?
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Is your current provider still managing your treatment?
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Have you submitted updated paperwork related to your leave?
Using Recertification to Confirm Continued Eligibility
Recertification allows employers to request updated medical information after leave has already been approved. The process is governed by 29 C.F.R. § 825.308 and may only be used in specific situations.
Situations where recertification may be appropriate:
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Absences deviate from the schedule or duration in the original certification
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Leave shifts from continuous to intermittent without explanation
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New information raises questions about whether the condition is being used as described
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More than 30 days have passed since the last certification, and the regulation allows for a new request
When to Consider Outside Surveillance
FMLA regulations do not prohibit surveillance, but employers should use it only when there is credible evidence of potential misuse. Surveillance typically involves hiring a licensed third-party investigator to observe whether an employee’s actions contradict their certified limitations. The investigator may collect video, photographs, or written observations that document physical activity or location during approved leave. Any investigation involving surveillance should be conducted by a licensed professional and reviewed by legal counsel beforehand.
Guidelines for lawful use:
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Surveillance should be based on documented concerns—not speculation
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Employers should not use internal staff to collect covert evidence
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Surveillance must not interfere with protected leave
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Footage or reports should be time-stamped and tied to specific dates of approved leave
Documentation That Protects Employers
Employers must show that disciplinary action was based on documented evidence of misconduct or fraud—not on the use of FMLA leave itself. Clear records help demonstrate compliance with legal obligations and consistency in how concerns were handled.
Key records that support a defensible outcome:
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Attendance logs showing FMLA and non-FMLA absences
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Copies of certifications and recertifications with dates and provider information
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Internal communications showing how concerns were raised and reviewed
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Interview notes focused on observed facts, not assumptions
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Timelines that link concerns to action and show consistent enforcement
What to Avoid During Any FMLA Investigation
Even when FMLA abuse is suspected, errors in how the investigation is handled can expose the employer to legal risk. Deviating from policy, applying inconsistent standards, or changing the justification for discipline may lead to retaliation or interference claims.
Missteps that increase legal risk:
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Relying on secondhand complaints without verifying the facts
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Terminating an employee without reviewing the current certification and attendance records
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Changing the stated reason for discipline after the employee challenges the action
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Treating employees inconsistently based on department, manager, or protected status
Case Law That Helps Employers Understand What Works—and What Doesn’t
Terminations That Held Up in Court
Courts have upheld FMLA-related terminations when the employer relied on clear, documented evidence that contradicted the certified reason for leave. Employers that followed their internal process and based decisions on objective facts—not assumptions—were able to defend those actions.
Examples of FMLA misuse that supported termination:
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United Airlines: An employee on intermittent leave for a chronic condition was observed traveling internationally. The court upheld the termination based on conduct inconsistent with the stated limitations.
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Cincinnati Bell: An employee approved for leave due to incapacitating pain attended a public festival. The court found the employer had a valid basis to investigate and terminate.
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Other cases: Terminations were upheld where employees on leave were documented performing in a rock band, doing strenuous yard work, or working another job that involved tasks they were certified as unable to perform.
Missteps That Have Led to Employer Liability
Courts have upheld FMLA-related terminations when the employer relied on clear, documented evidence that contradicted the certified reason for leave. Employers that followed their internal process and based decisions on objective facts—not assumptions—were able to defend those actions.
Examples of FMLA misuse that supported termination:
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United Airlines: An employee on intermittent leave for a chronic condition was observed traveling internationally. The court upheld the termination based on conduct inconsistent with the stated limitations.
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Cincinnati Bell: An employee approved for leave due to incapacitating pain attended a public festival. The court found the employer had a valid basis to investigate and terminate.
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Other cases: Terminations were upheld where employees on leave were documented performing in a rock band, doing strenuous yard work, or working another job that involved tasks they were certified as unable to perform.
Practical Steps to Reduce FMLA Abuse Company-Wide
Preventing FMLA abuse starts with clear policies and consistent enforcement. When managers know what to look for and how to escalate concerns, problems are more likely to be addressed early and lawfully.
Steps to reduce misuse and protect against liability:
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Maintain a written call-in and attendance policy that applies to all employees
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Train managers to recognize abuse indicators and refer concerns to HR
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Keep time-stamped records of leave usage, certifications, and related communications
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Apply documentation and review standards consistently across teams
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Monitor leave data for patterns that may require follow-up
FAQs About Investigating FMLA Abuse
Can an employee be disciplined for using FMLA leave to go on vacation?
It depends on the reason for the leave. If the leave was certified for bonding with a new child, travel is not prohibited. However, if the leave was approved for a serious health condition that limits physical activity, and the employee travels in a way that contradicts those limitations, the employer may have grounds to investigate.
Is surveillance legal if someone is suspected of leave fraud?
Yes, if used appropriately. Surveillance should only be considered when there is specific, credible evidence that the employee is misusing leave. It should be conducted by a licensed professional and never interfere with the employee’s protected rights.
What counts as enough evidence to support termination?
There is no set standard, but employers should rely on documentation that clearly contradicts the medical limitations stated in the employee’s certification. Documentation may include time-stamped video, social media content, or reliable third-party reports supported by internal records.
How long should an employer wait before acting on red flags?
There is no required waiting period, but employers should first review the certification, gather supporting documentation, and give the employee a chance to explain before taking action.
What’s the difference between misuse and a protected leave?
Protected leave is used for a certified medical condition or qualifying reason, within the scope of the documentation. Misuse occurs when the leave is used for a purpose not covered by the certification, or when the employee provides false or misleading information to obtain it.
This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.