Of all the questions we receive from employers, those involving suspected abuse of intermittent family and medical leave remain among the most frustrating and difficult to address. While only a minority of employees on intermittent leave abuse this status, the FMLA often ties employers’ hands in terms of their response to this behavior. Fortunately for employers, a new Sixth Circuit Court of Appeals decision supports one company’s attempts to respond in the face of apparent misinformation as to the reasons for taking time away from work.
In LaBelle v. Cleveland Cliffs, Inc., the plaintiff was approved for intermittent FMLA leave for flare-ups and doctor’s appointments relating to a degenerative joint disease. His employer began noticing that the plaintiff was frequently claiming the need to take leave to extend paid time-off and weekends. The company hired a private investigator who recorded the plaintiff playing golf on two occasions when he claimed he was unable to work due to the joint issues. When confronted with this information, the plaintiff claimed that he took FMLA leave on days before or after other scheduled time off to allow him extended time to recover from work tasks, and that golf did not aggravate his condition. The employer did not buy these excuses, and the plaintiff sued for FMLA interference following his termination.
The Sixth Circuit affirmed dismissal of the plaintiff’s complaint. It rejected arguments from the plaintiff that his doctor confirmed his ability to play golf as part of his recovery from repetitive work that aggravated his shoulder. The court noted that the FMLA request was only approved to deal with flare-ups and medical appointments, not to rest from lower level pain caused by the plaintiff’s work. Had the plaintiff needed long weekends for recovery purposes, he should have modified his FMLA leave request.
The Sixth Circuit was clearly influenced by video of the plaintiff golfing seemingly pain-free while informing his employer that he was incapacitated. The fact that these supposed rest periods were tied to weekends, holidays, and vacation did not help the plaintiff’s case. Employers suspecting employee FMLA abuse have the option of using private investigators, social media, or other means to determine if the employee’s activities while on leave are inconsistent with their leave approval. Before taking disciplinary action against such employee, the employer should carefully review the leave request and supporting medical information to make certain that the observed activities are outside the scope of the FMLA leave approval.