fraudulent FMLA application

Whatever · June 2005

An employee brought in a FMLA form for her mother. The doctor's portion was completed by a doctor who has never ever treated the mother (the mother lives in Eastern Europe and her daughter concedes that the mother has never been here). Also, the daughter requested an intermittent leave. Besides denying the FMLA, should the ee be disciplined?

JM in ATL · June 2005

Well I guess that would depend on what your handbook says. Do you have anything in there about falsifying company documents? If so, of course discipline her, she just tried to fraudulently deceive the company into giving her time off under a federal law. Most companies would consider that grounds for automatic dismissal.

However, if this employee's mother is legitimately ill, she was probably in her mind trying to do the right thing. I would explain to her how this constitues employee fraud and that it is grounds for termination, etc., etc. and that it won't be tollerated.

That is some nerve for a doctor to fill out FMLA paperwork for a patient he has never seen. I would report him too.

marc · June 2005

[font size="1" color="#FF0000"]LAST EDITED ON 06-06-05 AT 10:47AM (CST)[/font][br][br]Fire her, file criminal charges for attempting to defraud the company, and file charges against the Dr. with the AMA. I think there is a State agency that handles the Dr. complaints.

Yes, this is a hard line approach - it's Monday and this sort of conspiracy gets me going.

How in the world is an intermittent leave situation going to work with the mother in Eastern Europe? What a crock!

Gillian3 · June 2005

There is going to be one heck of a large travel bill for those trips to Eastern Europe while intermittent leave is in effect. I am not sure what I would do. My first instinct would be to treat it as fraud and terminate the employee, but I guess that I would consider where this person is in her mind, and do something lesser if warranted. She can't reasonably think that intermittent leave will allow her to travel to Europe once a week, so it appears that she was pulling a scam.

MIHR · June 2005

We have had similar situations and they are understandable. The employee is in a catch-22. They are trying to comply with the notification requirements when the person they are trying to gain leave to help is physically located in a different country where the FMLA simply doesn't exist. I would do nothing to the employee except to see what I could do to help them. Honor the spirit of the law in this case and not the letter.

marc · June 2005

Scot, I will respectfully disagree.

The letter of the law is difficult enough to discern without setting precedent that will impact your FMLA administration with the rest of the staff.

But equally important is the problem we have with Medical providers who will sign anything to make their EEs happy - even if it is patently fraudulent. We have enough trouble just understanding and documenting the real FML situations without having to deal with Drs who will certify FML without ever even seeing the patient.

MIHR · June 2005

I agree regarding the doctor, but I was speaking to the larger issue of how to administer an FMLA case where the family member in question is in a different country and certification is impossible.

If I had a policy that always required certification, I would make an exception in that case. It is up to the company to declare the leave FMLA with or withour certification. In a case like that I would work with the employee and make a judgment call. If I trusted the employee and the situation, I would make the call, thereby "honoring the spirit of the law."

SMace · June 2005

The way I read your post was that you gave advice to Whatever to grant an employee intermittent leave for her mother in Europe based on a fraudulent FMLA certification.

I still don't quite understand your rationale behind that.

pork1 · June 2005

WHATEVER: Under our company policy this ee would be terminated for falsification of company documents. The FMLA is so tightly regulate, do you feel like the employer could get away with even the slightest devation from the regulation and company policy? I don't believe so, the employee would be into the "back pocket" of an attorney and you would not even be given the chance to explain.

I recommend termination or let it run its course and wait for the next employee to qualify ever so slightly for FMLA, then you must re-consider the actions of the previous employee, who you let get by with falsification of the documents and did not terminate. What kind of fair and equal treatment environment do you choose to operate?

Be fair, honest, and most importantly consistent in the employers's actions in all HR proceedings!

Best wishes for a good outcome!

PORK

Whatever · June 2005

Thanx, everyone. We have decided terminate. The fact is the ee lied on her application and knowingly submitted a false doctor's statement. Furthermore, in the past when an ee has a problem because the parent is in a different country, they have had the sense to come me and discuss the situation and we have made accomodations.

Balloonman1 · June 2005

Good decision!!!!!!!!!

The Balloonman

neveradull · June 2005

Food for thought: I am a physician who speaks the same language as the mother. I call the mother's doctor in the eastern country and we consult over the phone, I then determine that the mother has a serious illness and complete the fmla paperwork for the daughter. Where in the FMLA paperwork does it say that I personally must have examined the mother to come to a diagnosis?

Whatever · June 2005

That's possible. But, what if I decide a second medical opinion is necessary. How do I get the patient examined by a doctor who is authorized by the state?

marc · June 2005

The entire form is to be completed by the health care provider. On it's face, the form means providing medical services.

Question 6.b.

"If any of these treatments will be provided by another provider of health services (e.g., physical therapist), please state the nature of the treatments."

That question is an opportunity for the Medical provider in your example, to indicate that the Dr in another country is involved. None of us saw the certification, so we don't know if the person signing the form came clean.

In my opinion, there is opportunity for a medical provider to give the information necessary for the company to make the decision. Why does one have to dissemble when the truth would have made the case all by itself? This isn't the first, or last time, this kind of situation has or will come up.

We have had a similar situation with an EE visiting family in Mexico, was ill for about 10 days. We got the physicians statement from a mexican medical provider and approved the FML.

Whatever · June 2005

If this ee had come to me to discuss the situation, there would have been no problem. We have in the past granted FMLA to ees with parents in other countries (knowing that the physicians statement would be completed when the ee arrived in the other country). The ee chose to follow a different path and as a result lost their job.

marc · June 2005

I think that was the right action to take.

HRCalico · June 2005

You don't say, but I hope this isn't a case of cultural differences where the employee doesn't understand or is misinterpreting FMLA. Especially if there is a language barrier . . . And the intermittent leave - that wouldn't be to help coordinate her mother's care via telephone or some other modern means of communication, would it?

But I'm sure you took all that into consideration. I'm a little late weighing in - just curious, I guess.

Nina I · June 2005

Also late in weighing in, and definitely too late for this particular ee problem, but just wanted to add that our company also offers a 30 day personal leave, that has to be approved by the project manager and the hr director. This way we have some discretion in helping employees who might not qualify for FML, but we still want them to be able to return without firing and rehiring, etc.

fraudulent FMLA application

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