Editor: Sanmathi (Sanu) Dev, Esq.
Below is an article written by my colleague, Ralph R. Smith, Esq., Co-Chair of our firm’s Labor & Employment Group. If you wish to view additional articles and/or be kept up-to-date with labor & employment issues, visit our HR Resource blog by clicking here.
It seems like every day, I get some very unique questions in my practice. This one was a doozy. A client calls and tells me that an employee who is out of work on a medical leave of absence is posting pictures of herself on Facebook while on a wonderful vacation in the Bahamas. Needless to say, the client is irate and wants to take immediate disciplinary action against the employee, believing that the employee is not really sick and is engaged in some type of fraud under the Family and Medical Leave Act (“FMLA”). So, what can an employer do in such a circumstance?
Believe it or not, a lot.
Despite what some may think, being on FMLA leave does not shield an employee from possible disciplinary action, either for conduct that was committed before the leave or even during the leave. Employers can even fire an employee for misconduct when an employee is on an FMLA leave. The FMLA specifically states that if an employee would be subject to a possible job loss if they were physically present at work and not on a leave, the employee can lose their job even if they are taking FMLA. So, the statute itself provides an employer with some latitude in these types of situations. Obviously, any time such disciplinary action is taken there are risks, so the employer must make sure that it has solid documentation and proof to support its discipline in case the employee brings suit and claims either retaliation or interference with the ability to take FMLA leave. These are both possible claims that could be brought in such circumstances, so employers must proceed with some caution in navigating these types of factual scenarios.
In my client’s situation, the employer has every right to concern itself with possible FMLA fraud. It is real and happens much more frequently than you would think. There are a number of reported cases where courts have given employers the ability to address such situations, going as far as allowing terminations in the very scenario on which my client sought legal advice. In one such case, an employee who was on an FMLA leave for a mental condition was discovered on a vacation in Florida. The employer learned about it when the employee posted pictures of himself on the internet. After the employee was fired for FMLA fraud, he brought suit claiming retaliation and interference with his FMLA rights. In defense of his actions, the employee claimed that his doctor directed that he needed to relax more to deal with his stress condition, and that was why he took a vacation in Florida. The court rejected the claim, declaring that the point of FMLA leave is to allow an employee to recuperate from a serious medical condition and did not give an employee license to take an unauthorized surreptitious vacation from work. Thus, the employee’s termination while on FMLA leave was declared a valid disciplinary action by the employer.
Therefore, employers you do have tools available to you when you sense possible FMLA fraud. Proceed with caution, but don’t let those possible risks prevent you from imposing discipline against employees who are truly attempting to abuse the FMLA and harm your workplace.
