Curbing FMLA Abuse: A Guide for Business Owners

You’ve probably dealt with more than a few tricky leave requests as a business owner…

Most of the time, FMLA works exactly as it should. It gives people breathing room to handle real medical or family needs without fearing for their jobs. But every now and then, something feels off.

Maybe it’s the employee who always seems to “get sick” right before a holiday weekend. Or the same doctor’s note showing up again and again.

Sometimes that's where the trouble starts. Abuse of FMLA leave doesn’t just drain time - it throws off schedules, slows down work, and could leave the rest of your team frustrated.

The upside? You can get ahead of it with the right policies in place.

We’ve broken down 10 practical steps you should know as a business owner. Keep reading!

1. Understand What Abuse Really Means

FMLA abuse isn’t just an employee taking too much time off. Abuse is when leave is used for reasons the law doesn’t cover - like faking a medical condition, exaggerating symptoms, or using intermittent leave to skip less desirable shifts.

Fraud takes it even further: forged paperwork, altered doctor’s notes, or working a side hustle while “recovering.”

Abuse is frustrating. Fraud is fireable. Knowing the difference helps you respond in the right way.

2. Track Leave Like You Track Payroll

Think of leave as a currency. Every day away from the job has a cost. There’s lost output, extra scheduling, and frustrated coworkers. Tracking it well is the first defense against misuse.

Look for patterns:

• Does leave always happen around long weekends?
• Do absences match the medical certifications?
• Is one department showing unusually high usage?

You can track all of this in Megapay!

Better yet, let an HR service do the heavy lifting. Did you know Megapay offers fractional HR as a service? Learn more about it here and let us know if you have any questions!

3. Don't Settle for Vague Paperwork

The law allows you to ask for medical certifications, a document that’s completed by a healthcare provider to support an employee’s need for leave.

That means the provider must include:

• When the condition started
• How long it’s expected to last
• Why your employee can’t perform their job duties

And if the documentation doesn’t line up with how the leave is being used? You can and should ask for recertification.

4. Get a Second Opinion (Or Third)

If something doesn’t feel right, you’re not stuck with the first doctor’s note. Employers can request a second medical opinion at their own expense.

If the two opinions differ, you can go for a third (and that one is binding). Yes, it’s an extra step, but it can help you with proving fact from fiction.

5. Enforce Your Call-In Rules

Your employees still need to follow company policies for reporting absences. If your handbook says they must notify a supervisor within 30 minutes of a shift starting, that applies to FMLA leave too (unless an emergency prevents it).

This isn’t about being harsh, it’s about being consistent. If you are clear with your policies and enforce them across the board, it’s less likely your employees will push boundaries.

Want other tips on what to include in your employee handbook?

6. Get Ahead of Intermittent Leave

Intermittent leave is a huge headache for employers because it’s easy to misuse and sometimes even harder to prove. But that doesn’t mean there is nothing you can do.

Ask your employee for specifics about why their intermittent leave is medically necessary. Require treatment schedules when possible. And remember… you can transfer an employee to a temporary role that better accommodates unpredictable absences, as long as pay and benefits stay the same.

7. Investigate. But Do It Fairly.

If you suspect abuse, don’t jump straight to discipline. Compare leave patterns to the certification, ask for updated paperwork, and talk directly with your employee.

If you’re still concerned after discussion, you are able to take stronger steps like surveillance. This should be a last resort (and we suggest done with legal guidance).

Always document your actions to protect yourself from discrimination claims.

8. Request Fitness-for-Duty Note

When an employee comes back from medical FMLA leave, you don’t have to just take their word that they are able and ready to work. You can ask for a note from their doctor confirming they are fit to come back. 

Make sure that this is an across the board policy! That way, it’s fair and consistent for all employees returning in similar situations.

9. Set Clear Rules About Outside Work

Moonlighting (an employee is working another job while on leave) during FMLA leave is a red flag. If you already have a company-wide rule against outside employment, it applies while someone is on leave too. This includes side businesses, second jobs, or even helping a friend’s company. 

The clearer you make your policy to your team, the easier it will be to enforce.

10. Focus on Training and Awareness

Most problems can be avoided if your team knows what is expected of them. Give your managers the tools they need to spot a valid FMLA request and coach them on how to talk through different situations without crossing the (legal) line.,

Your employees also need to understand their rights and their responsibilities as your employees.

When everyone is on the same page, there’s less of a chance to misuse FMLA leave.

FAQ: FMLA Abuse Questions Every Business Owner Asks

Q: Can I deny leave if I think an employee is faking?
Not without evidence. Use recertification, second opinions, or investigations before you make that call.

Q: What if they ignore our call-in policy?
You can enforce your attendance rules, as long as you apply them to all employees and your employee wasn’t in a true emergency.

Q: Can I check their social media?
Yes, but make sure you have solid evidence before acting. If an employee on leave for back surgery posts ski trip photos, that’s a red flag.

Q: Is it legal to move someone on intermittent leave into another role?
Yes, if the transfer is temporary, has the same pay and benefits, and helps minimize disruption. You can’t do it just to discourage leave.

Q: What’s the difference between abuse and fraud?

• Abuse is bending the rules, like taking more leave than necessary.
• Fraud is deliberate dishonesty, like forging paperwork. This can justify termination.
  
  

FMLA Should Be A Safety Net

FMLA abuse can’t be stopped completely, but it can be kept under control. Having clear policies and applying them evenly to everyone can help. Plus, there are tools you can use to make the process easier to manage.

With Megapay, it’s simpler to keep an eye on absences and spot patterns. You can stay on the right side of compliance without burning out your managers. 

Protect your business, support your team, and keep FMLA leave what it was meant to be. A safety net, not a loophole.