Friday, October 9, 2015

Loose Lips Sunk This FMLA Ship

It’s a fact that employers become frustrated with intermittent FMLA leave of their employees. The often unpredictable absences, coupled with the feeling that the employee is using FMLA leave as a free pass to take off whenever they want to, can drive employers crazy. Imagine then how annoyed you would be, as an employer, to discover that your employee was using FMLA leave to take a cruise!

In the case of Fitterer v. State of Washington Employment Security Department, plaintiff submitted a request for intermittent FMLA along with her doctor’s certification that she suffered from migraines. Not too long thereafter, she requested use of a week of vacation followed by a week of unpaid FMLA leave. The employer probably should have been tipped off by the fact that the plaintiff characterized these requests as FMLA vacation. 

During her absence, the plaintiff’s father-in-law revealed to plaintiff’s supervisor in casual conversation that the plaintiff and her husband were on a previously planned cruise. Needless to say, this hacked off the employer pretty badly. 

The employer launched an investigation, starting with a request to the plaintiff’s doctor for clarification of her need for time off. Initially, the doctor admitted that plaintiff was not unable to perform the functions of her position during her cruise. He later said that he endorsed the cruise because it served as a period of time where the plaintiff could rid herself of work stressors and possibly reverse the pattern of her migraines. 

It should come as no surprise that shortly after the plaintiff’s return from the cruise, the employer fired her. Among its reasons were abuse of FMLA leave and falsification of time records (the requests for time off that she characterized as FMLA leave).

The plaintiff sued for interference with her FMLA rights. On cross motions for summary judgment, the employer argued that the plaintiff was not properly on FMLA leave during the cruise because she was not undergoing treatment during that time and that there was no evidence that she could not perform the functions of her job. 

The court found in favor of the employer. Aside from numerous other deficiencies in plaintiff’s evidence (for instance it turned out that her doctor in all of this was a dermatologist who didn’t really treat patients for migraines and never conducted any medical tests to lead to the diagnosis of migraines), plaintiff failed to show that while she was on the cruise that she suffered from a serious health condition which made her unable to perform the functions of her position. Therefore, she failed to show that she was entitled to FMLA leave to begin with during that period of time.

Of course we know that all of this started when the employer saw red after the plaintiff’s father-in-law let it slip that she was on a cruise. But employers should take note that even if this employer was motivated by anger over the situation, it did its homework and gathered facts to show that this plaintiff did not need to be off of work and on a cruise for medical reasons. 

When employers suspect abuse of FMLA leave, especially intermittent FMLA leave, it can be a frustrating situation. Employers are able to take disciplinary action against employees who use their FMLA leave for reasons other than for which it was granted but they have to have solid facts to support their decision.