Intermittent leave and fraud detection

Employers often struggle with how to identify and handle suspected fraud when dealing with intermittent leave requests. While these matters can be daunting, employers can proactively take steps to help address suspected fraud before taking action.

If you suspect employees are using healthcare providers who may be completing health certification forms on demand, consider the following measures.

Leave certification

First, review the certification carefully to ensure it is “complete and sufficient,” just as you would with any certification. Follow the definitions for “complete and sufficient” provided by the federal Family and Medical Leave Act (FMLA) regulations:¹

• Complete: If there are incomplete entries, further investigation may be warranted. 
• Sufficient: If the information is there but the responses are “vague, ambiguous or non-responsive,” that’s a red flag.¹

Ask employees to furnish missing or vague information. Then give them at least seven calendar days and see what they provide. The regulations state clearly that if the deficiencies are not cured (or fixed), FMLA leave may be denied.

Second and third opinions

Requesting second and third opinions is one of the few tools you can use to combat suspected abuse by an on-demand provider, and it’s the most powerful one in your toolbox. On-demand providers offer services quickly, instead of an employee waiting for an appointment with their regular healthcare provider, and services are frequently offered through a digital platform.

When an issue is big enough to warrant a more forceful response, taking the second and third opinion route is the best option for all employees who use the specific provider. This helps ensure there isn’t any discriminatory impact to your requests.

If the additional opinions don’t establish the need for an employee’s leave, the leave may be treated as paid or unpaid leave under the employer’s established leave policies. And if this happens frequently enough, employees will learn that it may not be the best idea to use these types of providers.

Leave recertification

In addition to second and third opinions, you may recertify a leave if you receive a complete and sufficient certification. Notice the usage of “may” here, because recertification is an available tool only if certain events occur.

Outside of the typical reasons for requesting recertification in less than 30 days when you receive a request for an extension or if circumstances change significantly, the most likely reason for recertification is that an employer has received information that casts doubt on an employee’s reason for a leave of absence.²

The employee’s choice to use an on-demand provider to complete a certification form is not necessarily a reason to request recertification. You will likely need another reason, along with the presence of on-demand providers, to justify a recertification.

When it comes to suspected fraud and misuse, these tools can help employers address any potential issues. But these tools can also be used for any FMLA claim to ensure they are administered in a similar manner.

References

1. Code of Federal Regulations. 29 CFR § 825.305(c) Certification General Rule.
2. Code of Federal Regulations. § 825.308(c) Recertifications for leave taken because of an employee’s own serious health condition or the serious health condition of a family member.