On April 19, 2017, the 11th Circuit Court of Appeals reversed summary judgment for an employer on an FMLA retaliation claim. The district court had ruled in favor of the employer on the ground that the employee was terminated for abusing FMLA leave for his own serious medical condition (shoulder surgery) and not for taking FMLA leave. The employee had posted photos on Facebook of his trip to St. Martin and two trips to Busch Gardens during his FMLA leave.  The employer terminated the employee for poor judgment and the negative impact that his Facebook posts had on other employees in violation of the company’s Social Media policy. The district court concluded that employers can terminate employees for “good” reasons or “bad” reasons regardless of whether such decisions are prudent or fair. The district court’s opinion is Jones v. Gulf Coast Health Care of Delaware (M.D. Florida 2/18/16).

The 11th Circuit reversed on two grounds. First, with regard to the trips to Busch Gardens and St. Martin, the court said that the employer did not have any policy that required employees to remain at home or refrain from travelling while on medical leave. Second, with regard to the violation of the Social media policy, the court emphasized that the employer had not mentioned the Social Media policy in either the suspension letter, or the subsequent termination letter.  The court concluded that this reliance upon the Social Media policy when it had not been mentioned at the time of termination created “a number of inconsistencies and contradictions” which could serve as evidence of pretext that should be heard by the jury. The 11th Circuit’s opinion is Jones v. Gulf Coast Health Care of Delaware (11th Cir. 4/19/17).

FMLA Interference. In addition to his FMLA retaliation claim, the employee also alleged that the employer had unlawfully interfered with his rights under the FMLA by not advising him to submit a light duty certification when he returned to work (rather than a full, unconditional release). The employee argued that the employer had allowed other employees to return to work with light duty restrictions.  The 11th Circuit concluded that the other employees were not sufficiently similarly situated, including that they had actually submitted Fitness for Duty certifications while the employee in question had submitted a doctor’s note advising that the employee needed additional leave. The court also noted that the other employees did not have job positions that were as physically strenuous as the employee’s job, and that the other employees’ foot maladies were not as limiting as the restrictions caused by his rotator-cuff surgery.   The court concluded that the employee had essentially waived his FMLA right to reinstatement by taking an additional 30 days of medical leave at the expiration of his FMLA leave and because he failed to submit a properly fitness-for-duty certification at the end of his FMLA leave. 

Lessons for Employers?   It is fairly common for managers to raise concerns that employees are abusing their FMLA leave, and they frequently point to evidence (Facebook and otherwise) that the employee is travelling as proof of that abuse. Employers should be cautious about jumping to the conclusion that travel on FMLA leave is an abuse of that leave. Here, the court rejected that approach because the employer did not have a policy requiring employees to remain at home or not travel while on medical leave.  However, even if an employer had such a policy, this may not lead to a different judicial result. Employees often contend that travel is not inconsistent with their medical recovery and/or that such travel actually may help promote their successful recovery. And, doctors are often willing to submit documentation supporting this conclusion.   Relying upon a Social Media policy that prohibits certain social media posts also may not insulate the employer from FMLA liability. If an employer would like to terminate employment for FMLA abuse, they should carefully evaluate the circumstances, hear the employee’s side of the story, and seek legal counsel.