An FMLA investigation is a fact-finding process conducted by a licensed private investigator on behalf of an employer to determine whether an employee is using Family and Medical Leave Act leave for purposes that fall outside the scope of their approved medical condition. It typically involves surveillance, activity documentation, and observation of the subject in public settings.
If you suspect an employee is misusing approved medical leave, an FMLA investigation is the process used to verify whether their activities are consistent with their stated condition. For example, if an employee claims they cannot work due to a back injury but is observed performing physical activities inconsistent with that claim, an investigator can document that behavior. The findings can then be reviewed by legal counsel or HR to determine next steps.
An employer approves intermittent FMLA leave for an employee who claims a chronic condition, but a supervisor notices the employee is consistently absent on Mondays and Fridays, raising questions about whether the leave is being used as approved. A company receives an anonymous tip that a warehouse worker on extended medical leave has been working a second job during the leave period. An HR department notices a pattern where an employee's FMLA absences coincide with scheduled performance reviews or disciplinary meetings.
Licensed private investigators conducting FMLA investigations are limited to observation and documentation of activity that occurs in publicly visible locations, such as public streets, parks, or commercial properties where there is no reasonable expectation of privacy. Investigators cannot access private medical records, intercept communications, or enter private property without permission. Employers should consult employment counsel before acting on investigative findings, as improper handling of FMLA-related matters can expose a company to retaliation claims under federal law.
What evidence is typically delivered at the end of an FMLA investigation, and how long does the process usually take?
Investigators generally deliver a written report summarizing surveillance activity, along with date- and time-stamped photographs or video footage documenting the subject's observed behavior. The length of an investigation varies based on the subject's schedule and activity level, but most FMLA investigations run between a few days and several weeks of active surveillance. The timeline is often discussed with the client upfront based on the specific circumstances of the case.
Can the surveillance footage or investigative report be used in a legal or HR proceeding against the employee?
Findings from a properly conducted FMLA investigation can be submitted as supporting documentation in HR proceedings, termination reviews, or legal matters, but their admissibility and weight depend on how the evidence was gathered and the applicable state and federal laws. Employers should have employment counsel review the report before taking any adverse action to ensure compliance with FMLA regulations and to reduce exposure to retaliation claims. Evidence collected through unlawful means, such as recording in areas with a reasonable expectation of privacy, may be inadmissible and could create additional legal liability.
