Controlling the use of intermittent leave is one of the more perplexing aspects of the Family and Medical Leave Act (FMLA) for employers. Two recent federal decisions provide employers with greater flexibility in controlling FMLA abuse by upholding employee terminations based on the employers’ honest suspicions that employees were not using FMLA leave for the purposes for which they had been granted.

In Vail v. Raybestos Products Company, issued by the U.S. Court of Appeals for the 7th Circuit, the employee was assigned to the third shift, from 10:45 p.m. to 6:45 a.m. The employee suffered from migraine headaches that required that she occasionally take time off when the onset of the headaches became severe. From May through September 2005, the employee took more than 33 days of intermittent FMLA leave, ostensibly because of her migraines. The onset of the headaches would come without notice and it was the employee’s practice to call in just before the start of her shift to advise her employer she would be absent on those days when the headaches were severe.

As the summer progressed, the employee’s use of intermittent leave became more frequent, leading the employer to suspect that her time off was not for medical reasons. The employer knew that the employee’s spouse operated a lawn mowing business and that the employee often worked for him part time. Summer and fall were the prime mowing seasons. Suspecting a connection between the employee’s leave requests and her husband’s need for her help during his busy season, the employer hired an off-duty police officer to monitor her activities. The officer’s observations in early October led to the employee’s termination.

After ending her shift on October 6, the employee obtained a recommendation from her physician that she not work for the first 24-hour period following a change in her migraine medication. The employee called in to request FMLA leave, which was granted. The next morning she was observed leaving her house, stopping at a gas station to fill up two lawn mowers and then proceeding to a client of her husband’s company where she and another individual mowed the customer’s lawn. That same afternoon, the employee again requested FMLA leave because of a claimed migraine headache and that leave was also granted. The employee was subsequently terminated for abusing FMLA leave.

The employee filed suit, claiming her termination interfered with her rights under FMLA. The U.S. District Court for the Southern District of Indiana granted the employer’s motion for summary judgment and the employee appealed. The Seventh Circuit upheld the grant of summary judgment.

The court noted that an employer can defeat an interference claim by showing that the employee did not take the leave for the intended purpose. The appropriate standard was the “honest suspicion” that the employee was abusing the leave. While noting that use of an off-duty police officer to follow the employee was not necessarily the preferred behavior for an employer, the court nevertheless concluded that the honest suspicion standard had been met.

In Davis v. Subaru of Indiana Automotive, the U.S. District Court for the Northern District of Indiana applied the same “honest suspicion” standard under similar facts and concluded that the termination was proper under FMLA. The employer had adopted a short-term medical leave policy that prohibited an employee from accepting gainful employment during normal business hours while on any such leave. The plaintiff took three FMLA leaves in 2005. In December 2005, he requested a one-month FMLA leave to have surgery on his wrist. The leave was granted and the employee’s physician submitted a statement that the employee would be unable to perform his job duties until February 6, 2006, at the earliest. In mid-January 2006 the employer received two anonymous phone messages reporting that the employee was selling auto parts while on medical leave. The employer hired private investigators who verified that the employee (a) was selling auto parts from his home; (b) had sold or attempted to sell parts to both investigators; (c) had advised them about the employee’s Internet business; and (d) had given them his business card. Based on those reports, the employer terminated the employee for violating its prohibition against engaging in gainful employment during normal working hours while on leave.

The employee brought suit under FMLA, alleging that the termination interfered with his FMLA rights. He claimed that the private investigators’ facts were not accurate as reported to the employer and the employer could not, therefore, formulate the basis for an “honest suspicion” that the employee was engaging in gainful employment while on leave. The employee admitted that he bought and sold auto parts as a sideline, but argued that the activity was a just a pastime, not a job, and could not be regarded as gainful employment. The court rejected these arguments and granted the employer’s motion for summary judgment.

In so ruling, the court emphasized that the employee’s arguments were misplaced in that they focused on the accuracy of the employer’s information rather than on the honesty of the employer’s belief that the employee had engaged in gainful employment. Echoing the holding of the Seventh Circuit in its Vail decision, the Davis court held that there was ample evidence to establish that the “honest suspicion” standard had been met: the anonymous phone calls claiming that the employee was buying and selling auto parts while on leave, the written reports of the private investigators confirming the accuracy of those calls and the employee’s admission that he was engaging in that activity as a “pastime.”

Although the “honest suspicion” standard adopted and applied by these courts is potentially helpful to employers that suspect that an employee’s use of FMLA leave is not genuine, employers should exercise caution in applying that standard in any factual setting. In both cases, the employer validated the accuracy of its suspicions by engaging the services of an outside investigative service. Without that validation, it is unlikely that a termination decision based solely upon the anonymous phone calls in the Davis case, or the employee’s occasional involvement in her spouse’s lawn business in the Vail decision, would have been sufficient to meet the “honest suspicion” standard. The courts in these cases agreed that the employer’s suspicion need not be accurate, but the pragmatic approach suggests that in these situations employers should take reasonable measures to verify any suspected misuse of FMLA leave before taking disciplinary action.