We are often asked for advice by clients when they discover through the magic and over-sharing of social media that their employee who is on an FMLA leave, either continuous or intermittent, is doing something that seems more like fun and less like recuperating or being incapacitated from working. Normally this creates a good deal of ire not only among supervisors and managers but often even more so in co-workers, who sometimes are even more offended than management by FMLA abuse. The fact is that many employees suffer from health conditions, big and small, and still report to work on a regular basis. They can sometimes feel truly offended when they see or hear of a co-worker who is “playing up” a medical condition for the purpose of taking off of work. So, addressing FMLA abuse is as much about enforcing policies as it is about maintaining morale in the workplace.
Here’s a couple of examples that commonly arise in some form that can be a little tricky for employers. The first is an employee who suffers from migraines (you can substitute allergies or anxiety and depression without much distinction). He or she cannot always predict flare-ups or episodes but are approved for intermittent leave when they fall ill. The second example is the employee who is off from work while recuperating from an illness or injury and thus, is expected to be incapacitated. In either example, a post on social media or a report otherwise that the employee is engaging in an activity that seems to prove that they can work presents a question for the employer. In typical lawyer fashion, the answer to the question of whether the employee who is engaging in other activities while on FMLA leave is subject to discipline is a resounding “it depends”.
This is especially true for the employee who is on intermittent FMLA leave for flare-ups of a chronic condition. The reasonable expectation is that the employee is incapacitated and unable to perform any activities; except maybe going to the doctor. As such, if an employee who is absent on a day that they claim to be an FMLA-qualifying absence for migraines, is seen out and about engaging in activities like shopping, doing yard work or the like, it is a safer bet that they are abusing FMLA leave. This is because their physician’s statement likely says that the employee will experience migraines and be unable to perform work. For the most part, if a migraine is not stopping someone from shopping or doing yard work, then it is probably not so debilitating as to keep that employee from coming to work. The advice to employers in these situations is to cautiously proceed with discipline but allow the employee a chance to tell their side of the story. I once had an employee say that they awoke with a migraine and took medicine which cleared up the migraine by 3:00pm which was too late to come to work, and of course they were spotted mowing their lawn at 4:00pm., which is why it’s generally important to allow the employee to respond to the allegation of FMLA abuse. Those convenient excuses though might trigger consideration of hiring someone to conduct surveillance on the employee in the future.
The employee who is on a continuous FMLA leave for recovery or treatment of an illness or injury presents a different question. This situation is where the physician’s statement will really be important. Here’s the scenario: an employee who performs mostly sedentary work but does have to use stairs and occasionally lift up to 10 pounds, has to have an appendectomy. Their doctor states that they cannot lift anything and have to avoid too much activity during their recovery, which might take 6 to 8 weeks. As the employer, you do not believe that you can accommodate those restrictions, so you place the employee on FMLA leave for that period of time. On week 7 the employee is posting pictures of himself on a cruise. Everyone is annoyed, from the managers who feel duped, to co-workers who are angry because they have to pick up the slack.
It’s important for employers to closely examine the physician’s report to confirm the employee’s restrictions before initiating discipline. It is possible, annoying as it might feel, that it is not inconsistent with the employee’s current activities. So, it is possible that an employee with restrictions of no lifting and limited activity could go on a cruise and limit their activities accordingly. On the other hand, if you saw pictures of that same employee on the climbing wall or hiking, then you would know that he or she was likely abusing their FMLA leave.
While we might think that FMLA leave is synonymous with being fully incapacitated, and therefore unable to engage in any fun activities, that might not always be the case. Before an employer initiates discipline, carefully consider whether the employee’s fun activity could be consistent with the need for the leave.
