The Sixth Circuit Court of Appeals recently provided employers addressing potential FMLA abuse with important guidance on how such matters should be addressed. It turns out that playing golf while on an FMLA leave can actually get you fired.
In LaBelle v. Cleveland Cliffs, Inc., the plaintiff worked as a lab technician at a mining operation. After about ten years of employment, LaBelle filed a claim for intermittent FMLA leave for shoulder pain that his doctor certified would cause him to miss work about once a month for three day periods during flare-ups. In approving the leave, Cleveland Cliffs relied on the doctor’s restrictions as written, approving LaBelle for up to four medical appointments per year and for monthly flare ups, which would last up to three days per episode. Importantly, in the FMLA leave approval letter, Cleveland Cliffs specifically noted that the FMLA leave was limited to the conditions specified in his doctor’s certification, and that improper use or abuse of intermittent leave was grounds for discipline, up to and including termination.
Over the next year Cleveland Cliffs detected a suspicious pattern in LaBelle’s use of FMLA leave. He would routinely take leave between periods of scheduled vacation, or extend other approved time off, claiming he was suffering from a flare up in his shoulder condition. As a result, Cleveland Cliffs hired a private investigator to follow LaBelle on his intermittent leave days. The private investigator discovered that, far from nursing a painful shoulder, LaBelle was using his intermittent leave days to play in a weekly golf league. After reviewing videotape of his golf game (and noting that LaBelle had a particularly “smooth and powerful” swing), Cleveland Cliffs notified LaBelle that it suspected he was engaging in fraud and abuse of the FMLA and allowed him to request a hearing at which he could explain his behavior and potentially avoid discipline.
At the hearing, LaBelle claimed that because his shoulder hurt every day, he was of the understanding that he could take days off at his choosing. He also claimed that he would combine his weekend days off with FMLA days because that would allow him the most consecutive time off of the work that caused him pain. Finally, LaBelle claimed that he could golf even when he was on leave because golfing was just less aggravating to his shoulder; it was the difference between a “quick swing” that was “80 percent …legs and core” and repetitious work required in the lab.
Unsurprisingly, management did not accept LaBelle’s explanation. Cleveland Cliffs decided that if LaBelle was experiencing a shoulder flare up that prevented him from working, he would not be able to golf. Conversely, if he could golf, he could work. And, as a result, they fired him. LaBelle sued, claiming that the company both interfered with his rights under the FMLA and retaliated against him for using FMLA time. After discovery, the trial court granted Cleveland Cliffs motion for summary judgment, finding that LaBelle’s apparent abuse of FMLA time was a legitimate nondiscriminatory reason supporting his discharge.
The Sixth Circuit agreed. The Court noted that Cleveland Cliffs had approved LaBelle’s FMLA leave for two reasons: attending medical appointments and taking three days off per month for a “flare up.” Even if LaBelle’s explanation for why he could golf was given credit, it was undisputed that LaBelle was not taking FMLA leave for “flare ups” or medical appointments. He took FMLA leave because, according to him, he was in constant pain and would take time off to give himself as much rest as possible. But, the Court held, “occasional rest to alleviate low-level pain is not what his FMLA leave was for.” If he wanted to take occasional long weekend to mitigate his pain, the Court held, he should have requested time off for that reason. He did not, and, as a result, the time off was not for the approved reasons. Dismissal of his FMLA claims was affirmed on that basis.
There are important lessons for employers here in dealing with suspected FMLA abuse. First, employers confronted with employees seeking intermittent leaves should get clear instructions from the medical provider certifying the need for the leave about how frequently time off is needed and what for. FMLA leave is not a free pass, and taking the time to get a clear certification will put the careful employer in a position to challenge apparent leave abuse later. Second, give an employee an opportunity to explain apparent leave abuse. An employer need not accept the explanation, but at worst the employee’s side of the story is set before he or she has an opportunity to come up with a more creative explanation, either with or without the assistance of counsel. It also is possible that the employer may learn that apparent leave abuse is anything but, and is instead a misunderstanding. Either way, getting the employee’s side of things makes the employer look reasonable rather than vindictive. Finally, Cleveland Cliffs makes it clear once and for all that an employee’s use of intermittent FMLA leave does not render him or her invulnerable from adverse employment actions. If abuse is found, employers have the right to take action, and they should.