Responding to Suspected FMLA Misuse

Suppose an employee requests two weeks of vacation, and the request is denied – perhaps on grounds of seniority or for operational reasons.  You then receive a doctor’s note stating that the employee needs two weeks of medical leave under the Family and Medical Leave Act (FMLA) for precisely the same dates as the earlier vacation request.  How can the company know this is a legitimate request?  And if it isn’t, what actions can the company take without violating the employee’s FMLA rights? Requests for clarification or authentication of the medical note, requiring re-certification because the request is inconsistent with prior notes you’ve received about this employee’s condition, or arranging second or third medical opinions may all be proper in the right context. In addition, many courts have held that a company’s honest belief that the employee was engaged in dishonesty is sufficient evidence to support terminating an employee, and so enough to defeat a claim for interference with FMLA rights.

An aggressive approach will not necessarily be constructive:  although the company may deny leave in some cases where the employee has failed to follow protocol, actively discouraging the employee from using statutory leave for its intended purpose can amount to unlawful interference with rights protected under the FMLA.   For example, in Gordon v. U.S. Capitol Police (D.C. Cir. 2015), the employer reacted with hostility to the notion of FMLA leave, and to the employee’s request in particular, and required her to undergo a fitness-for-duty examination that caused her to lose $900 in pay and interfered with her career prospects.  Because this conduct had a reasonable tendency to restrain, interfere with, or deny the exercise or attempt to exercise an FMLA right, the employee had stated a valid claim for interference with her rights.

However, FMLA is not intended to relieve employers of their common sense.  In Hamm v. Nestle USA (N.D. Ill. 2013), the employer didn’t violate the FMLA when it fired an employee on the suspicion that he misused protected leave to, among other things, attend a music festival.  The company’s suspicion was based, among other things, on the request for leave being submitted only after the denial of approved time off.  In Hanson v. Colorado Judicial Dep’t (10th Cir. 2014), the court found that misusing FMLA-protected time to train for a new job was a legitimate, non-discriminatory reason for discharge that defeated a retaliation claim.  Likewise, employees cannot expect protection from discharge when they tamper with their medical certification, Buel v. Toledo Hospital (N.D. Oh. 2013); Chapman v. Verizon Communications (W.Va. 2013), or post photos of themselves drinking at a festival on the same day they claimed a flare-up for chronic pain, Jaszczyszyn v. Advantage Health Physician Network (6th Cir. 2012).

Before terminating an employee for suspected FMLA misuse, the company needs to be sure of its facts, and nothing seems to shutter our objectivity as effectively as a whiff of betrayal.  In Gurne v. Michigan Bell Tel. Co. (E.D. Mich. 2011), an employee was fired for misusing her FMLA leave to attend a birthday party.  The employee denied her manager’s claim that the party occurred during work hours, and the court held that the company’s decision to deny her FMLA leave for the afternoon in question and fire her for an unauthorized absence could not reasonably rely on an “honest belief” that the employee had engaged in misconduct because the company failed to account for the employee’s specific medical restrictions or the stark differences between different witnesses’ versions of events.  In short, despite the considerable effort that went into investigating the claim, the outcome in Gurne didn’t qualify as a “reasonably informed and considered decision” sufficient to defend the company’s actions.

Because of these hazards, I’d almost always recommend that the employer carefully investigate its concerns about possible FMLA abuse, in addition to exploring its options under the regulations, before proceeding to discipline.  Which options make the most sense may depend on timing.  Should the company hire a physician to examine the employee and provide a second opinion on the validity of the employee’s certification?   Can we substantiate the rumors about the incapacitated employee?  Does the employee’s known or suspected conduct violate any written policies?  These considerations can matter, and not just solely in the context of a FMLA lawsuit:  in Bally’s Park Place v. National Labor Relations Board (D.C. Cir. 2011), the employer committed an unfair labor practice in violation of the National Labor Relations Act by firing an employee for dishonesty where he requested FMLA leave and concurrent paid sick time for his entire shift, but used the first 20 minutes of that leave to attend a union rally. Although the employer asserted that the employee had violated a work rule requiring honesty in all communications, as well as an unwritten zero-tolerance policy prohibiting misuse of medical leave, the NLRB held, and the court affirmed, that the unwritten nature of the zero-tolerance policy undermined the employer’s claim to its existence, and further, that company policies suggested that progressive discipline would ordinarily have been a more likely outcome for such misconduct. The employer’s burden in that particular labor context was to show, not that it could have fired the employee for this misconduct, but that it would have.  (The employee had not, after all, requested leave for a dishonest purpose, and his family care obligations were not scheduled to begin until after the union rally.)  By contrast, a pre-existing employment policy prohibiting unapproved travel while on paid sick leave does not necessarily violate FMLA, and may simplify certain employment decisions.  Pellegrino v. Communication Workers of America (3d Cir. 2012).  Such solutions should be developed carefully (and implemented only prospectively); although it’s unlawful to impose restrictions on an employee’s protected rights (for example, prohibiting a spokesperson from calling in for unforeseeable leave on behalf of an employee who could not do so personally, Millea v. Metro North Railroad Co., 2d Cir. 2011), the employer in Pellegrino avoided this problem by modifying its sick leave policy to restrict unapproved travel while on paid sick leave, which happened to run concurrently with leave under the FMLA.  This, the court held, was permissible under FMLA.

A measured response is also best because the company, in its frustration, may overlook reasonable alternatives – not all of which suggest employee dishonesty.  Did the employee take on another, less physically demanding job elsewhere during unpaid leave because their regular employer was unwilling or unable to consider a light-duty assignment that would have let them return to work?  Did an employee with sporadic health problems call out sick but recover late enough in their shift that commuting to work would be a waste of time?  Absent a relevant policy or special circumstances, many people would hesitate to call these good examples of abuse of leave.  And even when the company is convinced of the employee’s dishonesty, proving dishonesty can be challenging, and the employer would likely prefer to minimize its exposure in litigation.

If you’re concerned that one of your employees may be abusing their statutory leave, you should consult with counsel to review your options.  In the meantime, however, employers may wish to develop appropriate policies that accurately reflect their priorities and concerns, so that employees aren’t in a position to claim that they were unaware of the company’s expectations.

This post was written by : John Keil

About the author : Mr. Keil is a partner at boutique labor and employment law firm Collazo Florentino & Keil LLP.