A woman with back issues and trouble sitting for long stretches flew around the world to Thailand. FMLA abuse, much?


Image by net workerz from Pixabay

Apparently, her employer and the court thought so. That ominous sequence does not portend a successful FMLA lawsuit. Yet, that didn’t stop our plaintiff today from filing suit.

Here are the underlying facts:

  • The plaintiff asked her employer (the defendant) for permission to vacation in Thailand.
  • The defendant declined.
  • A few months later, the plaintiff’s doctor diagnosed her with sciatica and a herniated disc in her back, affecting her ability to sit for long stretches.
  • The plaintiff applied for and received Family and Medical Act leave from the defendant.
  • While on FMLA leave, the plaintiff flew to Thailand.
  • The plaintiff’s co-workers learned about the Thailand trip — gee, I wonder how that happened 🤔 — and reported her to management.
  • The plaintiff then texted other co-workers, threatening to punch the employees that complained to management.
  • The defendant fires the plaintiff for dishonesty regarding her trip to Thailand and violating the defendant’s antiviolence policy.
  • Plaintiff sues for FMLA interference and retaliation.

(Ok, it’s Friday. You’re probably working remotely or in a quiet office. This is the part where you can stop rolling your eyes and laugh out loud. Try not to spill your drink.)

The FMLA affords eligible employees the right to take up to 12 weeks of job-protected leave in a 12-month period. While generally, an employee returning from FMLA can get her old job back, there’s a catch. An employee need not reinstate an employee who abuses her leave. An employer’s honest belief that the employee is abusing the leave is enough to defeat an employee’s substantive FMLA rights.

So, put yourself in the defendant’s shoes. It had already denied the plaintiff’s initial request to go to Thailand. Only after she is approved for FMLA leave for a bad back that precludes her from sitting for a long time, she takes a trans-oceanic flight to Thailand.

Sounds sketchy to me. Here’s what the court had to say in this opinion:

It’s plain from the face of the complaint that [the plaintiff] didn’t use her leave for its intended purpose. She took FMLA leave due to sciatica and a herniated disc, preventing her from sitting for long periods of time, then took a lengthy overseas flight. An employer only needs to have an honest suspicion that its employee misused her FMLA leave to defeat the employee’s entitlement to reinstatement.

[The plaintiff] doesn’t argue that [the defendant] mistakenly believed that she took a trip. She admits that she traveled to Thailand. Rather, she insists that [the employer] can’t police where she takes her FMLA leave—in other words, that her trip didn’t conflict with the intended purpose of her leave. Traveling while on FMLA leave may be consistent with the purpose of the leave under some circumstances. But here, where [the plaintiff] took leave because she couldn’t sit down for prolonged stretches, the only reasonable inference to be drawn is that sitting on a plane to Thailand was clearly inconsistent with the stated purpose of her FMLA leave.

Well, there’s that, plus the plaintiff texted that she was “selling tickets to a one[-]hitter quitter boxing match” between her and a coworker; “if and when I see her[,] I’m punching her ass onsite.”

Oh, word? But you just lost your FMLA case.

Hey, before you get back to work or Thailand or whatever it is you have planned today, mark your calendars for next Friday, April 9, at Noon ET. That’s when The Employer Handbook Zoom Office Hour — just one hour this week — returns. Joining me will be Meyling “Mey” Ly Ortiz. Mey is Managing Counsel of Employment & Labor at Toyota Motor North America. She and I will be addressing the rise in discrimination against the Asian American and Pacific Islander community. We’re also going to address the power of the mentor/mentee relationship during this pandemic. If those topics pique your interest, you can register for the Zoom by clicking here.




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