An employee with severe shoulder pain sought and received from his employer leave under the Family and Medical Leave Act. The employer notified the employee that the leave was limited to up to four medical appointments per year and for monthly flare-ups lasting up to three days per episode.
Then, things got curious.
Over the next year, the employer noticed a suspicious pattern of FMLA leave. The employee repeatedly combined his FMLA days with scheduled days off and vacation days.
“Friday and Monday Leave Act? Hold my beverage.”
(He didn’t really say that. That’s what we call hyperbole.)
So, the employer decided to hire a private investigator to surveil the employee when he took FMLA leave. And guess what the company discovered? It learned that on two FMLA Tuesdays, which coincidentally (or not) were when the employee’s golf league played, the employee was out on the links playing rounds of golf. Upon reviewing the surveillance footage, the employee’s supervisor described his subordinate’s golf game as “unimpaired” as “[h]e moved without hesitation and his golf swing was both smooth and powerful” and he golfed “without any sign of distress or discomfort.”
So, the company interviewed the employee. First, explained the suspicious pattern of absences by explaining that because his “shoulders hurt every day, [he] was of the understanding these days were available for [him] to use at a time of [his] choosing” and that he “often attached them to a weekend in order to receive the most time for relief from the repetitious work that creates the pain.”
He then downplayed the golf as “80 percent legs and core,” rather than shoulder action, so it didn’t impair his shoulder condition.
The company responded by firing the employee. Its rationale was pretty simple: if the employee was experiencing a shoulder flare-up that prevented him from working, he would not be able to golf and that if he could golf, he could work. The termination letter cited fraud and FMLA abuse.
FMLA retaliation? FORE-get about it!
The employee then sued for FMLA violations, which both the lower court and Sixth Circuit Court of Appeals
couldn’t believe that someone would have the chutzpah to file determined shouldn’t make it to a jury. (Here is a copy of the Sixth Circuit’s opinion.)
The Sixth Circuit, in particular, focused on how the employee took leave for reasons that were inconsistent with the FMLA approval he received from the company:
[The company] approved [the employee’s] request for intermittent FMLA leave for two reasons: (1) attending medical appointments and (2) taking three days off per month for a “flare-up.” Even crediting [the employee’s] explanation of why it was ok for him to golf, or why he “stacked” his leave, [the employee] did not take FMLA leave for “flare-ups” or medical appointments. He took FMLA leave because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.… If [the employee] had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.
Now, you may be thinking, “What about the company’s honest belief that the employee was abusing his FMLA leave? Doesn’t that count for something too?”
Here it doesn’t come into play because the employee could not demonstrate that the company’s proffered reason for ending his employment was a pretext. Indeed, he was abusing his FMLA leave.
What are some of the things you can do when you suspect FMLA abuse? There are many, but I’ll list three:
- If the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification (e.g., quirky absence patterns, leave on Friday and Monday, stacking leave with other PTO, significantly more absences than on the FMLA certification), ask for recertification.
- Make sure that employees on intermittent leave are following your call-out rules.
- Provide the folks who receive the callouts, usually the direct supervisors, with questions to ask to ensure that each absence is FMLA-related.