If we have evidence a worker is abusing FMLA leave (like a video of them lifting heavy objects or playing sports), can we safely move forward with termination?
Quick Answer
Employers should not terminate employees suspected of abusing FMLA leave unless they have clear and convincing evidence that FMLA leave is being abused and they are fully aware of precisely what constitutes FMLA leave abuse.
Legal Perspective
Kollman & Saucier
Timonium, Maryland
The only answer here is “it depends,” according to author and employment law attorney Darrell VanDeusen of the firm Kollman & Saucier.
There are many, many cases decided – both for and against employers – who terminate employees when they think they’re abusing FMLA. This is an area where competent legal counsel should be consulted before terminating an employee.
Relevant Case Law
DaPrato v. Massachusetts Water Resources Authority
VanHook v. Cooper Health System
Walker v. City of Pocatello
HR Insight
Prescott HR
Columbia, Maryland
I would be careful, says HR Executive Kimberly Prescott. It depends on the reason the employee’s medical provider certified for their leave. For example, if the employee is out for mental health reasons, lifting is not a relevant reason to review the FMLA leave.
Additionally, how did we obtain the video? If the perceived infraction is related to the medical condition for which they have approved leave, you should engage in an interactive process. You could put the organization at risk if you move forward with termination without engaging the employee in dialogue. There are many factors to consider before moving forward with terminating an employee.
TBM Inc.
Dallas, Texas
Before taking any action, conduct a thorough investigation into the evidence, says HR Manager Susana Crawford.
For example, look at whether the actions observed are inconsistent with the employee’s stated medical condition and need for FMLA leave. If there are discrepancies, consult legal counsel for the best course of action.
You can request medical reevaluation if there are doubts about the employee’s medical condition. But be cautious of retaliation claims. Employees are protected from retaliation for taking FMLA leave, thus the need for legal counsel.
CDC Foundation
Atlanta, Georgia
I would be cautious with proceeding with a termination for abuse of FMLA leave, says Carrie Neal, Senior Director of HR and People Operations at the CDC Foundation.
If you are unable to validate that the video or picture was actually taken while the employee was out on FMLA leave, then the allegation could become quite costly for your company to defend in court.
Also, you would need to take into consideration what the employee’s FMLA was for: Was it to care for a family member, or for the birth or death of a child? These would not prevent a person from participating in playing sports or lifting heavy objects.
Key Takeaways
- If you have a legitimate reason to suspect that an employee is abusing FMLA leave, ask the employee to provide recertification.
- Discuss your suspicions directly with the employee and give them an opportunity to explain.
- Monitor leaves closely to detect any possible pattern of abuse.
- In some situations, the use of a private investigator may be appropriate.
- Maintain clear documentation relating to the results of abuse investigations.
- Do not terminate an employee based on suspected FMLA leave abuse without clear and convincing evidence of abuse.
INSIDER CONTENT
Q&As