Honesty is the best policy for worker and company in FMLA case

The Family and Medical Leave Act sometimes seems too good to be true. Under both the federal and Wisconsin laws, an eligible employee is allowed to take up to 12 weeks of leave without pay for major life events. The birth or adoption of a child, a personal health emergency and the serious illness of a member of the employee’s immediate family are just a few examples.

There are rules, though, and one of them is that the time off really does have to be related to the life event. An employee cannot tell his boss he is taking time off to have back surgery and instead go surfing in Tahiti. A plaintiff found this out the hard way when the 7th U.S. Circuit Court of Appeals ruled against him. (Wisconsin is in the 7th Circuit.)

The employee’s conduct was not as outrageous as our example, of course. In this case, the employee had taken time off a few times over a three-year period to care for his mother. Caring for a parent with a serious health condition is one of the events covered by the FMLA.

Apparently the company was concerned that employees were abusing the FMLA policy. In order to address the problem, the company hired a private investigator. That investigator checked up on the plaintiff a couple of times between 2006 and July 2007. The third time, he reported that the plaintiff had left the house only to pick up his mail.

The implication was that the employee had not helped his mother that day. He had merely taken the day off. According to court documents, when questioned about his activities, the employee’s explanations were inconsistent. He was fired.

He sued the company for interference with his right to reinstatement and his right to continue to take intermittent leave to help his mother. He claimed, too, that his termination qualified as retaliation under the FMLA.

The 7th Circuit looked to existing case law for the answer. A 2008 ruling in a similar case had come down in favor of the employer. The company could terminate an employee based on an “honest suspicion” that the employee was abusing the FMLA leave.

It may seem callous, but right now it is the law.

Source: Business Insurance, “‘Honest suspicion’ of FMLA abuse is justification for firing: Court,” Aug. 8, 2012

Our firm handles similar situations to the one discussed in this post. If you would like to learn more about our practice, please visit our Milwaukee FMLA page.


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