United States: 2 Essentials For Dealing With Employees Attempting To Game The System

Last Updated: August 9 2017
Article by A. Kevin Troutman

Today's workplace is fraught with legal traps for well-intentioned but unwary managers.  But one issue stands out far above the rest as perhaps the single biggest employee challenge in today's workplace: malingering employees attempting to "game the system" with leave and accommodation requests.

The Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), in tandem with workers' compensation and other state laws, often make it treacherous to work through these frequently-encountered issues. Nevertheless, two simple but crucial elements can help employers overcome these challenges and avoid nasty surprises: beware of common misconceptions, and maintain a reliable communication process. 

Avoid Misconceptions

First, the ADA and FMLA each impose distinct obligations and prohibitions on employers. Do not assume that compliance with one statute relieves you of any duties under the other. The same is true of state workers' compensation laws. Therefore, you must address compliance with each law individually. For example, an employee may have ADA rights despite being ineligible for FMLA benefits.  

The ADA prohibits discrimination on the basis of a disability and generally requires that you provide reasonable accommodations to a qualified employee if doing so would enable the individual to perform the essential functions of the job. Meanwhile, the FMLA requires you to provide eligible employees with up to 12 weeks of job-protected leave (and other benefits) during a 12-month period, and prohibits interference with or retaliation against any employee seeking to exercise FMLA rights.  

Second, no magic words or explicit reference to either the ADA or FMLA are required to trigger an employer's obligations. If you have sufficient information that an employee is actively seeking or simply needs an accommodation, or you're made aware of circumstances that qualify an employee for FMLA leave, you typically have a legal duty to make further inquiry. 

Third, good intentions or facially neutral policies do not necessarily protect you from legal claims. Assume, for example, that your company policy limits leaves of absence to 60 days after exhaustion of FMLA, or denies leave to new hires until after completion of 90 days of service. Consistent application of either policy probably violates the ADA in certain situations. Many well-intentioned managers have struggled with – and violated – these principles.  

Fourth, one size does not fit all. In other words, a set of strict standards will not protect you from liability. Under the ADA, consideration of possible accommodations requires an individualized assessment of the facts. Similarly, FMLA administration can be very fact-specific, especially as it pertains to intermittent leave. Each scenario is distinct and must be evaluated on its own. 

Avoidance of the foregoing misconceptions is a critical first step to fulfilling your legal responsibilities regarding employee leave and accommodations. The next step toward compliance is following a thorough, timely communication process to ensure consideration of all appropriate information and to reduce the potential for confusion or surprises.

Maintain A Reliable Communication Framework 

Under both statutes, you are required to fulfill certain communication duties. The ADA requires a confidential interactive exchange of information, while the FMLA calls for written notices, designations, and certifications. Properly documented communication trails are often pivotal when litigation ensues. Handled properly, the resulting documentation trail can help you demonstrate legal compliance, even when an employee is uncooperative. 

FMLA Notifications

The FMLA's requirements for detailed communication begin with a general notice for all workers and applicants. When an employee requests or may need FMLA leave, you must provide a timely notice addressing eligibility. You must also provide a rights and responsibilities notice detailing particulars of the leave, including but not limited to how you will calculate the FMLA time used and the employee's duty to provide certification from a healthcare provider. At this stage, you should also confirm the anticipated length of the leave and provide call-in or scheduling procedures for intermittent leave, if applicable. 

If intermittent leave is needed, attempt to define when and how often the employee intends to use the time. Seek medical clarification if and when the utilized time off varies materially from the healthcare provider's estimate. This often happens when malingerers attempt to game the system, so it's important to seek clarification before misuse of leave gets out of hand. But remember, only act on such suspicions when they are supported by objective facts based on the employee's conduct. 

The ADA's Interactive Process

Though not as precisely described in federal regulations, communication regarding ADA issues is at least as important as that involved in FMLA leave. Consistently documented communication helps you determine whether the employee is legally entitled to a reasonable accommodation in the first place, and what, if any, accommodations might enable the employee to perform the essential functions of the job. Information from the employee and the healthcare provider can help establish various parameters regarding the situation, including the employee's responsibilities to report to management, how the employee's condition affects their ability to perform essential duties, possible accommodations, and critical timelines. Litigation often arises when communication breaks down during the interactive process. It is therefore important to ensure that communication of information – including applicable deadlines – is timely, clear, and well-documented.       

Establishing a timeline is important because gaps in communication often create troublesome issues in litigation. To manage leave effectively, you should develop procedures to ensure timely updates of medical information and reminders when an approved leave of absence is about to expire. Be careful to never substitute your own judgment for that of a healthcare provider; always refer to medical documentation before reaching conclusions.     


As attendance, leave, and accommodation issues continue to arise, it is only a matter of time before almost every manager will be faced with an ADA or FMLA scenario. By helping management learn how to avoid misconceptions and to engage the appropriate framework for responding to leave and accommodation requests, you may save yourself enormous headaches, time, and money.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

A. Kevin Troutman
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.