Is Vacationing While on FMLA Leave Grounds For Termination? Maybe (Not)…

Employee leave abuse has gotten a lot of attention. The most common example is the employee who requests and gets approval for FMLA leave and the employer learns that s/he is really on a trip. That’s not surprising. You’re probably thinking, ” Isn’t that a no-brainer?”. The answer really depends on the specific facts. What happens if an employee requests leave to receive and recover from surgery and s/he spends part of that recovery period on vacation? Suppose the employee returns from leave, advises the employer that s/he will need an additional leave for additional surgery. Let’s suppose further that the employer finds out about the vacation on the same day, investigates, fires the employee and then the employee sues, claiming FMLA retaliation. Who wins? Do you still think that’s a no-brainer? You might be surprised.

This isn’t just a hypothetical case. This scenario, along with some other facts, which I’ll supply in a moment, really happened. The case involved a public utility company in Massachusetts. Earlier this month, the Supreme Judicial Court of Massachusetts upheld a $2m jury verdict in favor of the employee. Wait. How can an employee, who is supposed to be recovering from surgery be able, in the middle of a medical leave, to take a vacation, not suffer repercussions — and then get $2m? Let’s look at those specific facts.

Here’s what went down: In January, 2015, the employee told his employer that he would need foot surgery. He applied for FMLA leave and submitted a doctor’s note, indicating he would need to be out for 4-6 weeks after the surgery, and would transition to putting weight on his foot again 4 weeks post-surgery. A few weeks after the surgery, the employee asked to return to work early, as he was able to walk with crutches, and he did not want to exhaust his vacation time. The employer would not allow him to return without a doctor’s note, and the employee was unable to get one until his next scheduled appointment a few weeks later. Toward the end of his leave, the employee took a two-week vacation in Mexico with his family. ( Since I am paraphrasing I am leaving out some details).

The employee returned to work, and shortly thereafter, notified Human Resources that he would be needing knee surgery and therefore would again need FMLA leave. The HR Director forwarded the email to the HR manager, with the comment, “Is he serious?”, to which the HR manager replied, “OMG”. The employer found out on the same day, that the employee had taken a vacation while on leave, did an investigation, after which it concluded that the employee misrepresented his medical condition and therefore it terminated his employment.

There’s more though. (Isn’t there always?) The employer apparently had pictures of the employee proudly displaying the large fish he caught. The employer made special efforts to ensure that jury saw these pictures. Wait. Isn’t that important evidence of leave abuse? Isn’t that the smoking gun? Don’t the pictures call the employee’s statements as to his medical limitations into question? While the pictures were evidence, and, yes, they could call the employee’s credibility into question, there was this one tiny fact that turned the tide in favor of the employee. The fact was — wait for it— the employer didn’t have these pictures until after it had already decided to terminate the employee. Coupled with the emails from the HR Department, among other facts, the jury found that this employee was terminated in retaliation for having exercised his rights under FMLA and his stated intention to do so again.  The jury awarded front pay, back pay, emotional distress and punitive damages and attorneys’ fees, for a total of $2m.

Frankly, I am not sure that another jury would have seen this as a punitive damages case, or a $2m verdict. Be that as it may, in light of this verdict, how does an employer walk that fine line of complying with the FMLA and striving to prevent leave abuse? Are there any helpful takeaways here for employers? Here are a few:

1. Timing is everything. Evidence such as pictures or social media posts that are not available to you until after you have already taken an adverse employment action against an employee are probably not the smoking gun you think they’ll be. The evidence you use to defend an adverse employment decision, and particularly a retaliation claim,  needs to be evidence you actually had at the time of your decision.
2. Watch what you say — and what you put in any type of electronic document. The emails between the HR Director and the HR Manager with the messages, “Is he serious?” and “OMG” upon his return from leave and his stated intention to take additional leave were the smoking gun — and not the type this employer was seeking. Those were enough to at trigger and support an FMLA retaliation claim. Don’t make derogatory comments about anyone exercising their FMLA rights, and don’t allow other employees to do so either.
3. Retaliation claims can also include retaliation against an employee who expresses an intent to exercise his/her FMLA rights, not just those who actually go out on leave. In other words, the statement of intent to take FMLA leave is itself protected under the FMLA.
4. Yes, employees can sometimes go on a vacation while they are on FMLA leave. What? That seems counterintuitive. The employer’s HR representative testified that s/he didn’t think an ill or disabled employee should be able to go on vacation. That, according to the court, was wrong as a matter of law, as the court noted, “[a]n employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process.” What is relevant is the employee’s conduct while on leave, and whether it matches his/her stated medical limitations — wherever s/he actually chooses to be on leave.

well, this should provide some food for thought. Let’s mull that over for a bit. Oh, if you want to read the court’s decision, you can find it here. Bye for now!

Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.

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