November 20, 2024 • 10 mins
Typically, when an employee requests leave for family, medical, bereavement or other reasons, their request is legitimate. However, on occasion, some employees may try to take advantage of their leave benefits. So, what can employers do to help prevent this misuse from occurring, and how do they address it if it does occur? Listen in as we cover ways to help prevent and address misuse of leave. We’ll discuss:
- [0:57] Employer and employee trust
- [1:37] Examples of leave misuse
- [2:14] How to address suspected leave misuse
- [3:08] Using proactive policies and procedures
- [4:48] Requiring notice of leave
- [5:31] Seeking documentation
- [7:09] Implementing data analytics
- [8:50] Offering training and considering company culture
This content is based on generally accepted HR practices, is advisory in nature, and does not constitute legal advice or other professional services. ADP does not warrant or guarantee the accuracy, reliability, and completeness of the content. Employers are encouraged to consult with legal counsel for advice regarding their organization's compliance with applicable laws. This content is current as of the published date.
Copyright © 2024 ADP, Inc. All Rights Reserved. The ADP logo, ADP, RUN Powered by ADP, and HR{preneur} are registered trademarks of ADP, Inc. and its affiliates. All other marks are the property of their respective owners.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jim (00:00):
Typically when an employee requests leave for family, medical,
bereavement, or other reasons,their request is legitimate.
However, on occasion, someemployees may try to take
advantage of their leave benefits.
So, what can employers do to helpprevent this misuse from occurring
and address it if it does occur?
Welcome to HRpreneur.
I'm Jim Duffy.
(00:21):
From Main Street to your street,the HR{preneur} podcast is centered
around helping small businesses likeyours gain the knowledge you need.
From HR payroll and hiring, to time,taxes, benefits, and insurance.
Today we'll talk with our guest,Meryl Gutterman, about strategies
that can help you prevent misuseof leave, and how you can address
misuse of leave if it does occur.
(00:41):
Meryl is Senior Counsel for ADP's HCMGroup, where she provides guidance on
HR best practices and employment laws impacting ADP's services, products, and clients.
Hello there, Meryl.
It's great, once again, tohave you back on our podcast.
Meryl (00:55):
Hi, Jim.
Thank you.
It's great to be here with you as well.
Jim (00:58):
So, Meryl, before we begin discussing strategies to prevent misuse of leave,
let's talk first about the importance oftrust between an employer and
an employee.
Can you shed some light on that, please?
Meryl (01:09):
Absolutely.
That's a great place to start.
And I couldn't agree more thatthe trust between an employer,
a manager and their employees iscrucial to your company's success.
So when an employee does requestleave, remember that it's most often
for a legitimate reason and need.
But there may be instances when youmight suspect an employee is taking
(01:29):
paid or unpaid leave that they'renot entitled to, or they're taking
it without following company policy.
So it's important to know how toaddress these types of situations.
Jim (01:38):
So Meryl, could you provide us with some examples of these instances?
Meryl (01:43):
Sure, so misuses of leave can include fabricated deaths in the family
or exaggerated medical conditions.
Um, other examples could includean employee taking leave to
balance working for anotheremployer or maybe for themselves.
Or during company hours, sometimesthat's referred to as moonlighting.
And some employers might also say,See a rise in unscheduled absences
(02:07):
around company holidays whereemployees may call in sick the day
before or the day after a holiday.
Jim (02:13):
That's helpful to know.
Now that we've covered examples ofleave misuse, are there any ways for
employers to prevent misuse of leave
before it gets to that point?
Meryl (02:23):
Well, in the case of employees taking leave around company holidays,
employers can usually require nonexempt employees to work the day
before and after a company holiday inorder to receive their holiday pay.
But typically, employers would notapply this policy to employees who
schedule the time off in advance.
And employers can't apply this policy toexempt employees who have to generally
(02:47):
receive their full salary in any workweek in which they perform any work.
And then there are other ways to helpprevent employees from misusing leave,
including consistently applying yourleave policies and procedures, having
notice requirements in place where you'reallowed to, and also seeking documentation
where you're allowed to as well.
Jim (03:06):
Very good to know that, Meryl.
So if we could, let's dive deeper intoeach of those topics, if you don't mind,
starting first with applying your leavepolicies and procedures consistently.
Meryl (03:16):
Sure.
So if you're providing the leavebecause it's required by law, make
sure your policy aligns with alllaws that apply to your business.
You'll also want to maintain writtenpolicies, especially where they're
required by law, that explain all ofthe requirements of the leave benefit
and apply them to all employees
equally.
This includes who is eligible,the circumstances under which
(03:37):
employees may take leave, andhow employees may request leave.
So, for instance, when it comes tomoonlighting, employers generally may
prohibit employees from other work duringcompany time, or while the employee
is on family and medical leave, sickleave and other leaves taken because
the employee is unable to work or issupposed to be caring for a family member.
(03:58):
And if an employee is on extendedleave, such as parental leave, for
example, employers could considercalling the employee periodically
to check in on how they're doing andsee about their plans for returning
to work, but you have to make sureyou're doing this consistently for all
of your employees on extended leave.
And you'll also have to make sure thatyour check ins are not too frequent
or abrasive because then they couldbe considered a violation of the law.
(04:20):
So you want to make sure you're developinga communication plan carefully, and making
sure your contact doesn't interferewith the employee's leave rights.
But going back to that trust that wetalked about earlier, if you're using
compassion when you're evaluating,updating, and tailoring your leave
policies, then you can demonstrate thatyou understand your employee's needs,
and you can make your employees feel lessinclined to fabricate a leave request.
Jim (04:43):
Very helpful, Meryl.
That's a great point.
And to use trust as yourguidepost, especially.
Now that we've covered policiesand procedures, can we discuss
what employers should keep inmind for notice requirements?
Meryl (04:55):
Sure.
So under many leave laws, employersmay require advance notice when
the need for leave is foreseeable,and the amount of advance notice
may vary depending on the law.
When the need for leave isunforeseeable, employers may
generally request notice as soon aspractical, given the circumstances.
So, for example, employers mayrequire employees who are sick to call in
(05:15):
and speak with their supervisorbefore the start of their shift.
If you enforce notice requirements,you also should ensure that the
requirements align to all laws thatapply to your business and that
you're applying those requirementsconsistently to your workforce.
Jim (05:29):
Also helpful to know, Meryl.
So in addition to notice requirements,requesting documentation where
allowed by law can also help employersenforce their leave policies.
What should employers keep in mindwhen requesting documentation to
support an employee's leave request?
Meryl (05:46):
That's a great question, Jim.
So under certain leave laws, employersmay ask employees to provide reasonable
documentation for the need for leave.
But some laws do have restrictions.
Um, for example, there are some state andlocal paid sick leave laws that prohibit
employers from requesting documentationunless the employee has taken sick leave
for more than three consecutive days.
(06:08):
And there are certain jurisdictions,such as Illinois, also Chicago and
Cook County as well, and Maine andNevada, that have laws that entitle
employees to take leave for any reason.
And these laws may restrict orprohibit employers from seeking
documentation from employees at all.
For example, in Illinois, employeesaren't required to provide a reason for
(06:29):
the leave, and employers are prohibitedfrom requiring those employees to
provide documentation or any type ofcertification in support of the leave.
And some of these laws havedifferent rules as well.
For Maine, employers may requirean employee to provide a general
reason for an unplanned leave,
but employers can't require amedical note or other documentation
unless the employee's leave is formore than three consecutive days.
(06:52):
So all this to say, follow allapplicable documentation laws.
And in the absence of a law, considerwhat, if any documentation would be
reasonable to require from employees.
And again, make sure that your requestsfor documentation are made consistently.
Jim (07:07):
That all makes sense, Meryl.
Thanks for clarifying.
So we've reviewed policies and procedures,
notice requirements andseeking documentation, as ways
to prevent misuse of leave.
Are there any other preventivesteps employers can take?
Meryl (07:21):
Well, if you can incorporate data analytics into your leave
management practices, that can helpyou streamline and automate some
of your employees' leave requests.
And that can also provide insights intopatterns of leave requests and help
you identify problematic occurrences.
So, for example, if you look at yourleave reports, you may find themes
such as employees always call in sickon Mondays or Fridays, or if the same
(07:45):
relative has passed away several timesover the course of their employment.
So leveraging leave data can alsohelp you effectively update your
policies and your procedures.
And serve as support ifyou suspect leave misuse.
And when you're using data analyticsfor business reasons, also make sure
that you're following all applicablelaws, such as data privacy and
other notification requirementsthat apply to your jurisdiction.
Jim (08:09):
So, Meryl, in the event an employer starts noticing patterns of leave misuse,
how should they address the situation?
Meryl (08:16):
When you suspect or receive a complaint of leave misuse,
follow established policiesand procedures to investigate.
And if you conclude that the employeeintentionally misused leave, you may want
to consult legal counsel before subjectingthe employee to disciplinary action.
And you have to keep in mind, too, thatcertain laws may prohibit employers from
terminating individuals for exercisingtheir rights to take job protected leave.
(08:39):
And, enforce all leave policies fairly andconsistently to help deter others from
attempting to misuse your leave policies.
Jim (08:47):
Thank you, Meryl.
This has all been very helpful.
Are there any final thoughts you wouldlike to add when it comes to preventing
and addressing misuse of leave?
Meryl (08:55):
Well, since we started with trust, let's bring this full circle
and end with trust. To help preventemployees from misusing leave,
it's important, especially as leaders,to promote honesty and transparency
in your business, and this can involveensuring that all leaders are modeling
ethical behaviors for their employees.
Also, can include training supervisorson how to respond to leave requests,
(09:17):
and then enforcing those leave policiesand reporting suspected misuse.
Also, consider holding training sessions,such as when an employee is hired, on the
types of leave available, the processesfor applying for leave, and then the
implications for any policy misuse.
Jim (09:32):
So, Meryl, this has all been very interesting and helpful, and this
brings us to the end of this episode.
Again, thank you for stopping in.
I enjoyed our discussion, as I alwaysdo, and from our conversation, I have
been taking down some notes and havethe following takeaways. So as I read my
notes, please just keep me in line, okay?
So, the first point is, check and adhereto federal, state, and local laws
(09:54):
to help ensure compliance withleave policies, procedures,
notices, and documentation.
Second point is respond to requestsfor leave fairly and consistently.
Third point is use care andcompassion when drafting or
updating policies and procedures.
Next, consider conductingcheck ins for extended leaves.
(10:14):
Use data to gain insights onleaves and identify patterns that
may indicate possible misuse.
And lastly, cultivate your cultureby promoting honesty and integrity
to help prevent, leave misuse.
Did I capture them accurately?
Meryl (10:28):
You captured it perfectly.
Thank you, Jim.
Jim (10:30):
Thanks, Meryl.
Presented by ADP, HRpreneur focuseson the entrepreneurs and business
drivers who are shaping the growthof their companies and positively
impacting the lives of their employees.
With each episode, we bring theexperts to you, answer your questions,
and help you think beyond today.
So you can discover more success tomorrow.
Thanks also to our listeners forjoining us for today's episode.
(10:52):
Be well, and we hopeyou'll join us again soon.
Typically when an employee requests leave for family, medical,
bereavement, or other reasons,their request is legitimate.
However, on occasion, someemployees may try to take
advantage of their leave benefits.
So, what can employers do to helpprevent this misuse from occurring
and address it if it does occur?
Welcome to HRpreneur.
I'm Jim Duffy.
(00:21):
From Main Street to your street,the HR{preneur} podcast is centered
around helping small businesses likeyours gain the knowledge you need.
From HR payroll and hiring, to time,taxes, benefits, and insurance.
Today we'll talk with our guest,Meryl Gutterman, about strategies
that can help you prevent misuseof leave, and how you can address
misuse of leave if it does occur.
(00:41):
Meryl is Senior Counsel for ADP's HCMGroup, where she provides guidance on
HR best practices and employment laws impacting ADP's services, products, and clients.
Hello there, Meryl.
It's great, once again, tohave you back on our podcast.
Meryl (00:55):
Hi, Jim.
Thank you.
It's great to be here with you as well.
Jim (00:58):
So, Meryl, before we begin discussing strategies to prevent misuse of leave,
let's talk first about the importance oftrust between an employer and
an employee.
Can you shed some light on that, please?
Meryl (01:09):
Absolutely.
That's a great place to start.
And I couldn't agree more thatthe trust between an employer,
a manager and their employees iscrucial to your company's success.
So when an employee does requestleave, remember that it's most often
for a legitimate reason and need.
But there may be instances when youmight suspect an employee is taking
(01:29):
paid or unpaid leave that they'renot entitled to, or they're taking
it without following company policy.
So it's important to know how toaddress these types of situations.
Jim (01:38):
So Meryl, could you provide us with some examples of these instances?
Meryl (01:43):
Sure, so misuses of leave can include fabricated deaths in the family
or exaggerated medical conditions.
Um, other examples could includean employee taking leave to
balance working for anotheremployer or maybe for themselves.
Or during company hours, sometimesthat's referred to as moonlighting.
And some employers might also say,See a rise in unscheduled absences
(02:07):
around company holidays whereemployees may call in sick the day
before or the day after a holiday.
Jim (02:13):
That's helpful to know.
Now that we've covered examples ofleave misuse, are there any ways for
employers to prevent misuse of leave
before it gets to that point?
Meryl (02:23):
Well, in the case of employees taking leave around company holidays,
employers can usually require nonexempt employees to work the day
before and after a company holiday inorder to receive their holiday pay.
But typically, employers would notapply this policy to employees who
schedule the time off in advance.
And employers can't apply this policy toexempt employees who have to generally
(02:47):
receive their full salary in any workweek in which they perform any work.
And then there are other ways to helpprevent employees from misusing leave,
including consistently applying yourleave policies and procedures, having
notice requirements in place where you'reallowed to, and also seeking documentation
where you're allowed to as well.
Jim (03:06):
Very good to know that, Meryl.
So if we could, let's dive deeper intoeach of those topics, if you don't mind,
starting first with applying your leavepolicies and procedures consistently.
Meryl (03:16):
Sure.
So if you're providing the leavebecause it's required by law, make
sure your policy aligns with alllaws that apply to your business.
You'll also want to maintain writtenpolicies, especially where they're
required by law, that explain all ofthe requirements of the leave benefit
and apply them to all employees
equally.
This includes who is eligible,the circumstances under which
(03:37):
employees may take leave, andhow employees may request leave.
So, for instance, when it comes tomoonlighting, employers generally may
prohibit employees from other work duringcompany time, or while the employee
is on family and medical leave, sickleave and other leaves taken because
the employee is unable to work or issupposed to be caring for a family member.
(03:58):
And if an employee is on extendedleave, such as parental leave, for
example, employers could considercalling the employee periodically
to check in on how they're doing andsee about their plans for returning
to work, but you have to make sureyou're doing this consistently for all
of your employees on extended leave.
And you'll also have to make sure thatyour check ins are not too frequent
or abrasive because then they couldbe considered a violation of the law.
(04:20):
So you want to make sure you're developinga communication plan carefully, and making
sure your contact doesn't interferewith the employee's leave rights.
But going back to that trust that wetalked about earlier, if you're using
compassion when you're evaluating,updating, and tailoring your leave
policies, then you can demonstrate thatyou understand your employee's needs,
and you can make your employees feel lessinclined to fabricate a leave request.
Jim (04:43):
Very helpful, Meryl.
That's a great point.
And to use trust as yourguidepost, especially.
Now that we've covered policiesand procedures, can we discuss
what employers should keep inmind for notice requirements?
Meryl (04:55):
Sure.
So under many leave laws, employersmay require advance notice when
the need for leave is foreseeable,and the amount of advance notice
may vary depending on the law.
When the need for leave isunforeseeable, employers may
generally request notice as soon aspractical, given the circumstances.
So, for example, employers mayrequire employees who are sick to call in
(05:15):
and speak with their supervisorbefore the start of their shift.
If you enforce notice requirements,you also should ensure that the
requirements align to all laws thatapply to your business and that
you're applying those requirementsconsistently to your workforce.
Jim (05:29):
Also helpful to know, Meryl.
So in addition to notice requirements,requesting documentation where
allowed by law can also help employersenforce their leave policies.
What should employers keep in mindwhen requesting documentation to
support an employee's leave request?
Meryl (05:46):
That's a great question, Jim.
So under certain leave laws, employersmay ask employees to provide reasonable
documentation for the need for leave.
But some laws do have restrictions.
Um, for example, there are some state andlocal paid sick leave laws that prohibit
employers from requesting documentationunless the employee has taken sick leave
for more than three consecutive days.
(06:08):
And there are certain jurisdictions,such as Illinois, also Chicago and
Cook County as well, and Maine andNevada, that have laws that entitle
employees to take leave for any reason.
And these laws may restrict orprohibit employers from seeking
documentation from employees at all.
For example, in Illinois, employeesaren't required to provide a reason for
(06:29):
the leave, and employers are prohibitedfrom requiring those employees to
provide documentation or any type ofcertification in support of the leave.
And some of these laws havedifferent rules as well.
For Maine, employers may requirean employee to provide a general
reason for an unplanned leave,
but employers can't require amedical note or other documentation
unless the employee's leave is formore than three consecutive days.
(06:52):
So all this to say, follow allapplicable documentation laws.
And in the absence of a law, considerwhat, if any documentation would be
reasonable to require from employees.
And again, make sure that your requestsfor documentation are made consistently.
Jim (07:07):
That all makes sense, Meryl.
Thanks for clarifying.
So we've reviewed policies and procedures,
notice requirements andseeking documentation, as ways
to prevent misuse of leave.
Are there any other preventivesteps employers can take?
Meryl (07:21):
Well, if you can incorporate data analytics into your leave
management practices, that can helpyou streamline and automate some
of your employees' leave requests.
And that can also provide insights intopatterns of leave requests and help
you identify problematic occurrences.
So, for example, if you look at yourleave reports, you may find themes
such as employees always call in sickon Mondays or Fridays, or if the same
(07:45):
relative has passed away several timesover the course of their employment.
So leveraging leave data can alsohelp you effectively update your
policies and your procedures.
And serve as support ifyou suspect leave misuse.
And when you're using data analyticsfor business reasons, also make sure
that you're following all applicablelaws, such as data privacy and
other notification requirementsthat apply to your jurisdiction.
Jim (08:09):
So, Meryl, in the event an employer starts noticing patterns of leave misuse,
how should they address the situation?
Meryl (08:16):
When you suspect or receive a complaint of leave misuse,
follow established policiesand procedures to investigate.
And if you conclude that the employeeintentionally misused leave, you may want
to consult legal counsel before subjectingthe employee to disciplinary action.
And you have to keep in mind, too, thatcertain laws may prohibit employers from
terminating individuals for exercisingtheir rights to take job protected leave.
(08:39):
And, enforce all leave policies fairly andconsistently to help deter others from
attempting to misuse your leave policies.
Jim (08:47):
Thank you, Meryl.
This has all been very helpful.
Are there any final thoughts you wouldlike to add when it comes to preventing
and addressing misuse of leave?
Meryl (08:55):
Well, since we started with trust, let's bring this full circle
and end with trust. To help preventemployees from misusing leave,
it's important, especially as leaders,to promote honesty and transparency
in your business, and this can involveensuring that all leaders are modeling
ethical behaviors for their employees.
Also, can include training supervisorson how to respond to leave requests,
(09:17):
and then enforcing those leave policiesand reporting suspected misuse.
Also, consider holding training sessions,such as when an employee is hired, on the
types of leave available, the processesfor applying for leave, and then the
implications for any policy misuse.
Jim (09:32):
So, Meryl, this has all been very interesting and helpful, and this
brings us to the end of this episode.
Again, thank you for stopping in.
I enjoyed our discussion, as I alwaysdo, and from our conversation, I have
been taking down some notes and havethe following takeaways. So as I read my
notes, please just keep me in line, okay?
So, the first point is, check and adhereto federal, state, and local laws
(09:54):
to help ensure compliance withleave policies, procedures,
notices, and documentation.
Second point is respond to requestsfor leave fairly and consistently.
Third point is use care andcompassion when drafting or
updating policies and procedures.
Next, consider conductingcheck ins for extended leaves.
(10:14):
Use data to gain insights onleaves and identify patterns that
may indicate possible misuse.
And lastly, cultivate your cultureby promoting honesty and integrity
to help prevent, leave misuse.
Did I capture them accurately?
Meryl (10:28):
You captured it perfectly.
Thank you, Jim.
Jim (10:30):
Thanks, Meryl.
Presented by ADP, HRpreneur focuseson the entrepreneurs and business
drivers who are shaping the growthof their companies and positively
impacting the lives of their employees.
With each episode, we bring theexperts to you, answer your questions,
and help you think beyond today.
So you can discover more success tomorrow.
Thanks also to our listeners forjoining us for today's episode.
(10:52):
Be well, and we hopeyou'll join us again soon.
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