Employee caught abusing FMLA leave
Key to remember: Employers have some tools to help identify when employees might be taking FMLA leave for unqualifying reasons.
Applies to: All public employers, and private employers with 50 or more employees.
Impact to customers: This case helps illustrate what customers can do if they suspect an employee is abusing FMLA leave.
Vicki had been taking intermittent FMLA leave to care for her son for years, as her son needed constant supervision and medical care, which she provided when he was not in school or otherwise supervised. Vicki also had her own serious health condition.
At one point, Manny, Vicki’s supervisor, asked Tami from HR, about the leave. He also warned Vicki for taking 10 unscheduled days off between April and December. This resulted in discipline for absenteeism.
Manny also heard from one of Vicki’s coworkers that she might not be using her leave as expected or appropriate. Tami also heard that Vicki was using FMLA frequently and often in conjunction with a weekend or a day that she had already requested off.
To help validate such claims, the company hired an outside firm to conduct surveillance on Vicki over three days when she was on FMLA leave. On February 12, Vicki stated that her son was not having a “good day,” but she was observed driving to Dunkin’ Donuts and Walmart, picking up her other son from school, and exercising at L.A. Fitness, all without her son. There was no indication that a tutor or therapist was temporarily at the house, permitting her to leave briefly. On February 19, she was observed at L.A. Fitness, ShopRite, and Target with her other son, again, with no indication of a need to care for her child. On March 9, 2018, Vicki took FMLA leave for the stated reason that she needed to take her son to doctor’s appointments, but that son was observed boarding a school bus, and Vicki was observed driving her other son to a medical appointment and then to two stores.
In light of the surveillance, Manny and Tami asked Vicki about her leave. She refused to look at the footage and tried to turn in her badge. She was terminated, and she sued.
The court agreed with the employer’s claim that Vicki was terminated for inappropriate use of FMLA leave, and Vicki could not show that the reason was pretext. Vicki’s claim that the employer retaliated against her for taking FMLA did not pass the court’s muster. The evidence supporting the termination was based on an honest belief that the employee was misusing FMLA leave.
The employer’s honest belief stemmed from Vicki’s leave frequently occurring in conjunction with a weekend or other day off, and the coworker’s input on potential abuse.
VanHook v. The Cooper Health System, Third Circuit Court of Appeals, No. 21-2213, March 30, 2022
Employers don’t often use surveillance on their employees, but when they have an honest belief of fraud, it can be a useful tool. Just don’t jump to it without that honest belief, and of course, documentation of it.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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