Consider this simple set of facts:
- Employee injures his knee;
- Employee requests FMLA leave;
- Employer says no because the FMLA leave would coincide with the employee’s hunting trip;
- Employee takes leave anyway; and
- Employer fires employee upon his return to work.
Has the employer violated the FMLA?
I’m going to focus here solely on the employee’s FMLA interference claim.
Initially, a plaintiff alleging FMLA interference must show that:
- he was an eligible employee;
- the defendant was an FMLA employer;
- the employee was entitled to leave under the FMLA;
- the employee gave the employer notice of his intention to take leave; and
- the employer denied the employee FMLA benefits to which he was entitled.
Here, let’s assume that the plaintiff is an eligible employee, and the defendant is an FMLA employer. So, that leaves points 3-5.
Is the employee entitled to take FMLA leave?
The FMLA entitles an employee to twelve weeks of unpaid leave because of, among other events, a serious health condition. The employee had a knee injury, visited a doctor, and received treatment.
But what about the hunting trip? Isn’t the FMLA’s purpose to allow the employee to receive medical care and treatment, not go on a recreational outing?
The employee did travel with friends, but never actually went hunting or even touched his rifle. Instead, he mostly remained sedentary because he had trouble walking.
In its opinion, a Michigan federal court noted that “if a jury credited this evidence from [the employee], it could reasonably conclude that his trip was not inconsistent with his claimed serious knee injury.” Therefore, the knee injury would be a serious health condition for which the employee required FMLA leave.
Did the employee provide notice?
So what if I told you that the employee first asked for time off to go hunting with friends and then only asked for FMLA leave after the employer denied the initial request?
It doesn’t matter. The employee asked for FMLA leave for his knee. Full stop.
Was the employee deprived of any FMLA benefits?
After all, he did go on the hunting trip.
Except here’s the thing. An employer denies an FMLA benefit if an employer interferes with the FMLA-created right to medical leave or reinstatement following the leave. The employee did not reinstate the employee following the hunting trip. It fired him instead. That’s a problem.
The honest belief rule.
First five elements aside, ultimately, the plaintiff must show that the employer’s legitimate reason for taking an adverse employment action was pretextual.
When an employer reasonably and honestly relies on certain facts in making an employment decision, it can prevail even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless. So, here, the employer argued that it fired the employee for insubordination. Even if it was mistaken about whether the employee was entitled to leave and/or was insubordinate, it is still entitled to summary judgment because it honestly believed that the employee had been insubordinate and subject to termination.
Courts are split about whether the honest belief rule applies to an FMLA interference claim because a discriminatory motive is not an element of an FMLA interference claim.
But even assuming that the honest belief rule would apply, the court noted that sufficient evidence called into question the employer’s investigation. In particular, the employee had shown that before the employer terminated his employment, he had both informed his employer that his doctor had put him on leave and delivered a doctor note to his employer. Rather than follow up with the doctor, the employer assumed that the note was a fake. Therefore, a jury could conclude that the investigation was a sham and the employer’s belief was not honest.
This one is going to trial.
There are several ways that employers can protect the business in a situation in which an employee makes a suspicious/questionable FMLA leave request.
It starts with ensuring that leave requests are properly documented with a completed medical certification. If it’s incomplete or insufficient, make sure that the employee gets that form completed properly. Additionally, an employer who has reason to doubt a medical certification’s validity may require the employee to obtain a second opinion at the employer’s expense.
Later on, if you believe that an employee on approved FMLA leave is abusing it, recertification may be an option.
Or learn a lesson from this case and thoroughly investigate and document whether an employee used FMLA leave for a non-FMLA purpose. That way, if the matter gets litigated, you’ll be better prepared to support an honest belief and win the case.