What can we do? Employee may have been faking need for FMLA leave

Q. An employee went out of FMLA leave three weeks ago to undergo and recover from knee surgery. Last night, a reliable and trusted employee spotted him at the local YMCA playing a game of pick-up basketball. We now have serious doubts about the validity of his FMLA leave. Is there anything we can do?

A. Ask him to recertify his FMLA leave. Typically, an employer may request recertification only every 30 days. However, you may request recertification in less than 30 days if you receive information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. In seeking recertification, you may ask for the same information as permitted in the original medical certification.

The employee has the same obligations to participate and cooperate in the recertification process as in the initial certification process—and can lose his or her FMLA entitlement by not responding.

You must give the employee at least 15 days to provide the recertification. The employee must meet that deadline to keep his FMLA leave, unless it is not practicable under the particular circumstances despite the employee’s diligent, good-faith efforts.