Picture this: Jane, one of your employees, is on leave under the Family and Medical Leave Act (FMLA) to care for her elderly father with a serious health condition. But several employees who are friends with her on Facebook have told you that Jane posted pictures with her friends on a tropical Mexican beach during her leave. Before the leave, Jane provided you the proper certification from her father’s doctor qualifying her for six weeks of continuous leave. FMLA provides job-protected leave to employees with a serious health condition, or to care for a family member with a serious health condition. But what if an employee is abusing that right? If an employer has an honest belief that an employee is abusing his or her FMLA leave, job restoration may be denied.
How do you prove this? Employers must conduct a proper and thorough investigation. Obtain written statements from witness employees regarding the Facebook posts they saw. If you are unable to access Jane’s Facebook page because of privacy settings, ask the employees to provide you with printouts. Make sure you gather as much information as possible. The more documentation you have, the better defense you have to an FMLA interference or retaliation claim.
After gathering the relevant information, you should contact Jane. Confirm her request for the continuous leave to care for her father. Emphasize that the company takes fraudulent conduct seriously and confirm her understanding of that. (It’s best if you can point to a written policy or attendance practice stating that fraudulently obtaining leave or abusing leave is not tolerated and can be grounds for immediate termination.) Then confront her about the Facebook posts (or observations from others as to her whereabouts during her leave).
During this conversation, you will also want to give Jane the opportunity to explain the situation. Jane may provide you with a reasonable explanation—maybe the photo is a “Throwback Thursday” or maybe she went to Rocky Point for a quick weekend getaway because her brother was in town to care for her father. If the employee can provide a reasonable explanation, her FMLA leave is still protected. However, if she cannot provide an explanation, inform her that the company is conducting a thorough investigation of the incident and that she will be notified about her employment at its conclusion. You do not want to rush to judgment—be patient. Courts tend to defer to an employer’s termination decision when the employer has conducted a complete investigation.
Last year, United Airlines successfully defended an FMLA retaliation case when its former employee, Masoud Sharif, was fired for abusing his FMLA leave. The Fourth Circuit Court of Appeals ruled in favor of United because of the steps it took before terminating Sharif. United conducted a proper investigation by not firing Sharif immediately, did not reach conclusions on its own but had thorough interview notes and explanations, and terminated Sharif for not only abusing FMLA, but also for violating its company policy that required Sharif to remain truthful throughout the investigation.
What can you do now? Be sure your written attendance policy includes a statement that abuse or misuse of leave can be grounds for immediate termination. If you suspect one of your employees is abusing FMLA leave, please contact MSEC so we can assist you.