Most HR professionals have seen it before: the person who always uses the Family Medical Leave Act to take leave on Fridays to get a headstart on a summer weekend, or the worker whose back pain shows up every time he has tickets to a college football game.

But how far can employers legally go to crack down on those who are lying or abusing FMLA leave?

The problem isn't new to Barbara Dahlen, human resource manager for New World Pasta-St. Louis, a pasta manufacturer with 106 employees. At least 41 hourly workers qualify for intermittent FMLA leave.

"We had horrible excessive use problems," Dahlen recalls. "Our folks don't come to work for money. They come to work for benefits."

The situation also is familiar to Tracy Ferguson, human resource manager at Integram St. Louis Seating in Pacific, Mo., an automobile seat manufacturer with 350 hourly workers. About 35 or 40 workers are on regular FMLA leave in a typical week, not counting those who qualify for intermittent FMLA leave.

To make up for unexpected absences, Integram schedules an extra 15% of workers on weekdays and an extra 33% of workers on weekends. That can lead to unnecessary costs on some days, but it's better than winding up shorthanded on the manufacturing line. "We cannot run the risk of wondering how many people will show up to work," Ferguson says. "People don't give you a lot of advance notice" for FMLA leave.

The majority of FMLA users aren't lying or cheating to get the time off, experts say. Employers want to stop the few who are taking illegitimate leave because it hurts the company's bottom line, employee morale and productivity. About 10% to 12% of people who take FMLA are not doing it legitimately, according to Jim Brown, senior vice president of FMLASource, an affiliate of ComPsych.

Proper paperwork

By monitoring FMLA leave more closely, Dahlen was able to cut in half the total number of FMLA hours taken, from 12,195 in 2005 to 6,154 in 2007.

She has a nurse case manager review all of the FMLA requests, determine whether they are legitimate, ask the employee for clarification and request a second medical opinion, if needed. The nurse case manager costs $1,200 per month.

Ferguson recommends using functional capacity evaluations, especially prior to the return to work for frequent FMLA users. These evaluations test the person's balance, strength, coordination and ability to perform certain job functions, such as lifting. Each evaluation costs about $200 or $300.

To scrutinize FMLA leave, "you need time and patience, and lots of it," Dahlen remarks.

Don't approve paperwork that is vague about the duration of the FMLA leave or the frequency of flare ups for a chronic medical condition, she advises. "You don't have to accept FMLA paperwork that says 'unknown return to work.' You can make them put one or two days per month ... or next appointment scheduled for X date," Dahlen points out.

Because the timing is important for legal reasons, be sure to accurately date all the letters you send to employees about their FMLA leave. "Say what the penalty is if you don't return paperwork or provide clarification by [a certain date]," and always include a line that says extra paperwork is required to get additional FMLA days, Dahlen advises.

Brown says recertification of the FMLA paperwork is more effective than second opinions in identifying and stopping abuse. Employers can ask for a recertification any time there is a change in circumstances or they suspect abuse. This could be as often as every 30 days, but typically it wouldn't need to be that often, Brown says.

When requesting verification from a doctor, include a calendar of the employee's attendance history and a copy of the employee's job description, so that the doctor has a better understanding of the situation, Dahlen suggests.

If you request a second opinion, it should be with a physician who is not your company doctor, Dahlen says. A second opinion is not binding if it contradicts the employee's doctor, but a third opinion is binding.

"[Second opinions] can be time-consuming for you, but they pay off. You want to go after your abusers. You want your employees to know you're going to go after the abusers," Ferguson says.

Dahlen agrees: "At my facility, the scrutiny has provided an incredible deterrent for those who abuse FMLA. Those who truly have a need have no problem with it and are glad that we have taken the abuse seriously. Our goal is not to deny FMLA to those who have a true need; it is to make sure that those others are kept under control. Now, instead of Bob having five to seven days per month for FMLA, he may, after the third opinion, have one or two occurrences per month. This means that he can only miss up to two shifts per month, regardless of the number of hours that he is absent from the shift."

"Those who were abusing have determined, for the most part, that they should turn in reasonable paperwork from the get go or be prepared for a second and third opinion. Now that everyone is familiar with our tight control policy ... it has reduced our intermittent FMLA to just over 1% [of total hours worked]. It was almost 5% when I arrived," she adds.

Most of Integram's and New World Pasta's workers belong to a union. For worksites that are heavily unionized, Dahlen recommends putting specific FMLA rules into the union contract. For example, the contract might say that vacation time can be deducted if an employee goes over a certain number of FMLA occurrences.

It may be a good idea to include language stating that employees can be fired if they don't show up or call with a legitimate excuse for three days - and "I'm not coming in" doesn't count as a legitimate excuse, Ferguson says.

Surveillance

Ferguson recommends using a reputable surveillance service or private investigator to catch suspected FMLA abusers. You "need someone who is bonded and credible, with good techniques," she says.

This approach is legal and seems to be growing among employers. Some companies have reported catching employees driving, working a second job, exercising at a gym or doing home repairs while out on FMLA medical leave.

Ferguson recalls one employee who "was certified on a FMLA leave with a 'totally incapacitated' status and unable to perform work of any kind. We knew that the employee had a rental property, and it was nice weather, so we authorized surveillance. After two days, the surveillance company was able to secure video of the employee building and installing new kitchen cabinets at the rental property. The termination was uncontested by the union after viewing the video."

What's more, the surveillance acted as a deterrent to prevent others from abusing FMLA. "After the incident with surveillance, we had several employees return to work within the week or prior to the stated end of their leaves, and each made comments that they had heard about the incident and did not want the company to think they were abusing their leaves. The grapevine worked wonders!" Ferguson comments.

The 7th U.S. Circuit Court of Appeals recently upheld an employer's right to conduct surveillance on an employee suspected of lying to get FMLA leave. In Vail v. Raybestos, the employee claimed she suffered from migraines, but was caught on camera mowing lawns as a second job, according to court documents. The court ruled that "an employer has not violated the FMLA if it refused to reinstate the employee based on an honest suspicion that the she was abusing her leave."

However, employee-rights attorneys have argued that surveillance is harassment, intimidation and an interference with a worker's right to take FMLA leave.

Christy Phanthavong, an attorney in the Chicago office of Bryan Cave LLP, warns against having a blanket policy of conducting surveillance on all FMLA cases. Rather, it's better to do surveillance when you see a pattern or sign that indicates fraud. Brown agrees surveillance is an effective tool that should be used judiciously and wisely, just to catch the most egregious cases of abuse.