Let’s say that you have an employee on intermittent leave because she suffers from migraines. You have suspected that she uses her condition to avoid work even when she is not suffering from a migraine, but she has a proper medical certification from her doctor on file and she always recertifies on request. The problem is that she seems to suffer more migraines on Fridays and Mondays and when she has expressed to co-workers that she has many personal obligations which need her attention.
So let’s say that you follow our advice and conduct surveillance on her on a few occasions when she has called in sick for her FMLA eligible reason. Sure enough, surveillance catches her on two separate occasions out shopping and running errands on days she supposedly was suffering from debilitating migraines. Is this enough evidence to fire her?
Federal courts generally find that the answer to that question is “yes”. If an employer has an “honest suspicion” that an employee is abusing FMLA, and takes adverse employment action against that employee, the employer will not be liable for violation of that employee’s FMLA rights. As the courts have repeatedly stated, employees on FMLA have no greater right to their jobs than employees who are not on FMLA. Therefore, an employer need not conclusively prove that the employee has misused their leave. Rather, an honest suspicion will do. Put simply, if the reason for negative employment action is sufficient if the employee had not been on leave, then it is a sufficient reason even though the employee is eligible for leave. To require conclusive proof of misconduct would give the FMLA employee greater rights than other employees, which is not provided for or intended by the law.
We often advise that employers contract for surveillance when FMLA abuse is suspected because it can provide clear proof that the employee is not truly ill or caring for a family member. As compelling as video of your employee can be though, it should rarely be an employer’s sole source of evidence of FMLA abuse. We recommend a thorough investigation prior to taking action against an employee which may include the following:
- Review the medical certification completed by the employee’s physician to determine whether the activities of the employee are inconsistent with the statements and diagnosis of the doctor.
- Check for patterns of absences and document incriminating statements to support an initial suspicion of abuse.
- Interview your employee (without mentioning the surveillance) to compare their statements to what is revealed by the surveillance.
- After your employee has committed to a story of their whereabouts, show them the surveillance evidence to allow them the chance to explain.
- Thoroughly document the entire investigation results.