The Seventh Circuit Court of Appeals has issued an opinion in Vail v. Raybestos Products Co. that may provide guidance to employers who suspect an employee is abusing his or her leave rights under the Family and Medical Leave Act (FMLA).

The plaintiff in the Vail case suffered from severe migraine headaches. She was authorized for intermittent FMLA leave, which her supervisors regularly approved. From May through September 2005, she took more than 33 days of approved leave, typically calling in before the start of her 10:45 p.m. to 6:45 a.m. night shift to say she wouldn't be in. Her supervisors became suspicious when the frequency of her leave requests increased during the summer months because they knew the plaintiff worked part-time at her husband's lawn mowing business.

The company hired an off-duty police officer to monitor the plaintiff's activities. In October 2005, the plaintiff's doctor told her she should not work for the next 24 hours after taking a new blood pressure medication, and the plaintiff called in to say she would not be at work that night. The next morning, the surveillance officer observed her mowing the lawn at a cemetery serviced by her husband's business. The plaintiff then called in and requested FMLA leave for her shift that night because of the onset of a migraine. The company terminated her employment and she sued, claiming job protection under the FMLA.

The Seventh Circuit held that the employer did not violate the plaintiff's FMLA rights because the employer had an honest suspicion that she was abusing her leave. Despite a doctor's note attempting to explain the plaintiff's condition, which the company received the same day she was observed mowing, the court found that the employer honestly believed the plaintiff was "gaming" her FMLA leave because her observed activity reinforced its suspicion that she was not using her leave for its intended purpose.

Although the court noted that surveillance by an off-duty police officer "may not be preferred employer behavior," its holding reinforces that employers may legally monitor how employees use FMLA leave and can even terminate them for abusing leave. Still, employers should proceed cautiously in disciplining an employee for abusing FMLA leave. Employers should be careful not to violate employee privacy rights when monitoring employee activity, and also make certain there is enough evidence to satisfy the "honest belief" standard.