In any given week we are asked about employees “abusing” FMLA leave by being “up and about” when they “should” be home recouping. Well, a recent case finally spreads some light on catching up with an abuser.
The facts were simple enough. The employee was on an approved FMLA leave and apparently everything was going great for the employee. until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to the employee’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing, the employee admitted to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and the employer terminated him.
The Court had little difficulty in concluding that the employer had a legitimate basis to conclude that the employee had dishonestly misused his leave by going fishing. The court rejected the employee’s arguments that he had not done anything on the fishing trip inconsistent with his medical restrictions, and further that he could not have dishonestly used his FMLA leave to go fishing because the trip occurred between shifts (lol!).
None of that evidence supported an inference that the employer impermissibly used Plaintiff’s taking of FMLA leave as a factor in the decision to terminate Plaintiff. Even if Plaintiff was able to successfully identify flaws in his employer’s reasons for Plaintiff’s termination, Plaintiff provided no basis to infer that the employer relied on anything other than Plaintiff’s dishonesty, which is a lawful basis for termination, in terminating him. As a result, no reasonable fact finder could determine that Plaintiff’s taking FMLA leave was a negative factor in his termination.
There is little doubt that some employees will abuse and that remains a problem for employers. A few reminders, employers can enforce call-in rules, and certifying and recertifying the need for FMLA leave. Communicating with employees on leave can be awkward but some advocate that it is good to check on the employee and also giving them the company’s expectations of them while on leave (not doing any company work as an example).
In the present case, the employee claims to have misunderstood his responsibilities while out on his leave. He thought that he could take his trip (a) because fishing wasn’t inconsistent with the medical restrictions for his hiatal hernia and gastroesophageal reflux disease, and (b) because he took his trip during a time when he wouldn’t otherwise have been working. The employer, however, viewed this as FMLA misuse and fraud. Clear communication on the front end could have established expectations (don’t do anything physical; leave means leave, not vacation as other examples).
As a final note, always check with counsel before making any decision to terminate while a person is on leave or just returning.