Malingering: How to Protect Your Business when Employees Fake Sick Days

Malingering is a problem in the workplace as, according to a new study, 50% of Americans have admitted to faking a sick day from work.

As detailed by the Family and Medical Leave Act (FMLA), employees have a legal right to their family and sick leave.

However, that doesn’t mean employees won’t fake sick days; according to a study done by Moneypenny, the truth is there’s a fifty-fifty chance they’re faking it.

This is a staggering number, meaning many businesses have fired someone for abusing their sick days.

What should you do if you’ve fired a sick day abuser, especially if they threaten to bring you to court?

Protecting your business from FMLA abusers can have many hurdles.

Here are the many ways you can protect your organization after cutting off sick day fakers.

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What Is Malingering?

When employees call in sick, the first instinct of any organization is to believe their claim. With the pandemic still in force, most businesses don’t want their sick employees to come to work while transmitting viruses.

This can hamper and even result in loss of productivity, which no company wants.

However, this does not mean that employees can’t abuse the system.

Malingering is the process of faking or exaggerating a perceived illness as they look to skirt around work or responsibilities.

While it’s ok for employees to call in sick, malingering has a level of malicious intent to it that not many realize.

The case of frequent, short-term absences via sick leave can be disruptive to the business. Doing so without a valid reason other than wanting to go on a short holiday must pass under disciplinary procedures if proven right.

However, you want enough evidence pointing to employees' malingering as a business.

The FMLA law protects employees’ right to family or sick leave, as stated by its statutes. When employees have legitimate issues, employees must pass through absence management procedures.

On the other hand, proven malingerers would need the right disciplinary action, which may involve salary deduction or even dismissal.

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Protecting Yourself From Malingering Employees

Malingering employees aren't easy to catch, especially with the myriad of excuses at their disposal. However, you can protect yourself from malingerers by instituting the proper policy and coaching leaders and managers on how to spot malingering.

There are many ways to protect yourself from employees faking sick days:

1) Require Employees to Log Sick Days

For starters, you can require employees to log their sick leave. This simple process puts a number to the frequency of sick days your employees are taking.

Logging the number of sick days provides evidence for management to build a case against employees abusing sick leave policies.

2) Require Manager Notification

To deter people from faking a single day of sick leave, add the simple step of requiring manager notification for employees to take sick leave.

By implementing a call-in policy that requires sick leave takers to contact their managers at least an hour before their shift, there is a mechanism to deny paid sick leave without a call, making them think twice before “playing hooky.”

3) Build Great Culture

This one is much more difficult, but employers who build a high-quality culture of respect and trust often have far fewer malingering employees.

Consistent communication and empathy can encourage employees to be team players and only take sick leave when they're actually sick. 

In cases of suspected malingering, you should provide due process. You must give employees a chance to explain themselves and give their certifications due consideration.

Failure to provide due process may lead to legal repercussions, especially if the employee decides to sue because you're not allowing them their paid sick leave.

READ NEXT: How To Protect Your Business Against Employee Lawsuits

Good Faith Investigations Can Help

In cases of suspected malingering, you should investigate each case individually. An investigation can uncover many things about an individual, including a history of similar behavior.

This can help inform your next steps, especially if multiple employees have exhibited similar behavior. 

Human resources must talk to employees and their supervisors to gather more information. Your goal is to gather as much evidence as possible to confirm or deny their claim. 

Above all, you should ensure that your investigations are in good faith.

You can gather evidence and statements, but you shouldn’t use them to defame the employee. Your goal is to establish their sick leave, not undermine their reputation. 

If an employee claims they’re sick, you should always give them the benefit of the doubt. However, this doesn’t mean you shouldn’t perform due diligence to confirm their claim. 

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Protecting Yourself After Firing Employees Faking Sick Days

It's your responsibility as the owner or a leader to protect your business.

The last thing you want is for an employee to abuse your sick day policy, especially if they threaten legal action.

Malingering employees can be a huge liability to your organization if they continue to abuse the system.

You must protect yourself legally if you’ve fired an employee for faking sick days. 

If you must fire an employee for malingering, remind them that you’re firing them because of their conduct, not any health-related issues. While it may be hard to hear, you must protect yourself from legal repercussions.

To protect your organization, you must continue documenting their actions even after firing them. Doing so can help show a pattern of malicious intent and can help you gather enough proof to protect yourself from legal repercussions.

When employees are threatening you, the first thing to do is to document everything. Whether it’s an email or text message, save everything. Also, record your interactions with the person as they claim their sick leave. 

Secondly, take action. If you know that an employee is faking their sick day, take action immediately. This may involve contacting a local lawyer or attorney and requesting legal action.

This is where having the proper commercial insurance program can protect your business's sustainability.

Prepare Your HR Records

Firing employees for faking sick days can be a tricky business. It often requires thorough observation of their work habits to determine their intent. This often requires HR personnel to take a deeper look. 

Preparation is crucial, so you must prepare your HR records beforehand. An HR record can help your organization when defending itself from legal repercussions. 

Your HR record should include employee performance, attendance, and disciplinary records. When firing employees for malingering, you must ensure that you’ve documented all other forms of communication. This can include emails, text messages, call logs, and other forms of communication. 

Employment Practices Liability Insurance Protects Against Fired Employee Lawsuits

As a business owner, you need to protect your financial interests. It’s not uncommon that former employees will file wrongful termination suits against your organization.

This often comes with a cash settlement or payment, so this is where Employment Practices Liability Insurance can save your business.  

EPLI (Employment Practices Liability Insurance) insurance can protect your organization against employee lawsuits. This includes claims of wrongful termination, discrimination, and sexual harassment. This also includes wrongful termination due to FMLA abuse, so you can have financial protection for any legal proceedings you need to follow. 

It’s important to note that EPLI insurance is separate from your general liability insurance policy. While both policies offer similar protections, you must secure employment practices liability insurance to defend against employee lawsuits.  

Investing in the right insurance coverage can help protect your organization from costly legal repercussions.

EPLI, or employment practices liability insurance, can help protect your organization from the financial ramifications of employee lawsuits. With EPLI, your insurer can help cover legal fees, court costs, and judgments.

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Preparation Means Protection From Wrongful Termination Claims

Malingering employees can be a huge liability to your organization. They can disrupt business operations and hurt safety procedures.

Additionally, they can even hurt your reputation. While firing them can help deter them, you must protect your organization from legal repercussions.  

Preparing your HR records can protect your organization from wrongful termination claims. Additionally, you can protect your organization financially with EPLI insurance.  

At Rogue Risk, we believe a solid commercial insurance program provides the sustainability needed for businesses to take the necessary risks for profitable growth.

If this is the relationship you want with your insurance broker, we would love to talk to you.

I look forward to introducing you to a new way of viewing your insurance program.

Thank you,

Ryan Hanley



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