Raybestos Products Company (“the Company) fired an employee (Diana Vail) for abusing her leave. The Company fired Vail after suspecting that while on FMLA leave, she was working for a family lawn service business. After her termination, Vail filed suit alleging that the Company violated both the Family and Medical Leave Act and the terms of the collective bargaining agreement. The 7th Circuit Court of Appeals held that an employer does not violate the FMLA if it refuses to reinstate an employee based on an “honest suspicionEthat an employee is abusing her leave. (Vail v. Raybestos Products Company, No.07-3621, (7th Cir 2008)).

Vail, who suffered from migraines, worked the third shift. In April 2004, her supervisors approved the use of intermittent medical leave for her migraines. From May though September 2005, Vail received more than thirty-three (33) days of approved leave. Because the migraines occurred on short notice, Vail would call-in to the Company just prior to the start of her evening shift and notify her supervisor that she would not be able to report for work.

As her absences became more frequent, the Company’s suspicions grew that Vail’s reasons were not always genuine. The Company knew that her husband owned a lawn-service business and that Vail would periodically help cut grass during the week. Based on its suspicion, the Company engaged the services of an off-duty police officer to monitor her activities.

After working on October 6, Vail went to see her physician who prescribed a new medication and told her not to work for 24 hours. As a result, Vail called in and requested leave, but 10 minutes later, the off-duty police officer observed Vail fill-up two lawn mowers at a gas station and then proceed to cut the grass at a nearby cemetery. The off-duty police officer reported this activity to the Company’s human resources department. Later that same day, Vail called in requesting leave due to the on-set of another migraine. The next time Vail reported for work, she was terminated for abusing her leave. She filed suit alleging that the Company interfered her rights under the Family and Medical Leave Act.

To make out a claim for interference with her leave rights, Vail needed to show that she was an “eligible employeeE who took leave “for the intended purpose of the leaveEand whom her employer denied a benefit as a result of that leave. The Company could defeat her claim by showing, among other things, that she did not take leave “for the intended purpose." Citing previous precedent, the Court noted that “an employer is under no obligation to reinstate an employee who misuses disability leave." The Court interpreted this to mean that an employer does not violate the FMLA if it refuses to reinstate an employee based on an “honest suspicion" that an employee is abusing her leave.

After indicating that using an off-duty police officer to follow an employee on leave may not be the ideal employer behavior, the Court recognized that other employers have gone further. As a result, the Court finds that the off-duty officer’s report simply confirmed the Company’s “honest suspicion" that Vail was “gaming her leave" in order to help in her husband’s lawn business. As a result, the Company did not violate her FMLA rights.