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Using Surveillance to Investigate Workers’ Suspicious FMLA Medical Claims

Employers face a real challenge in meeting client and customer needs when staff members take time off work under the Family and Medical Leave Act (FMLA) or ask for extensive disability accommodations under the Americans with Disabilities Act (ADA). But what’s already a difficult situation can become downright aggravating when you have reason to believe an employee isn’t really impaired or incapacitated by a medical condition but rather is taking time off work for personal business or recreational activities or to avoid unwanted job responsibilities.

Can you safely monitor employees’ activities outside work to determine whether they’re using FMLA leave for its intended purpose or if they really need accommodations? Three recent court decisions shed light on the subject.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Family and Medical Leave Act

Time off becomes headache for employer
The first of the three decisions was recently issued by the Seventh U.S. Circuit Court of Appeals (the federal appeals court that reviews cases from Illinois, Wisconsin, and Indiana). Diana Vail suffered severe migraine headaches. She requested and received authorization to take intermittent FMLA leave, and her supervisors regularly approved her time off work because of headaches.

From May through September 2005, Vail took more than 33 days of approved leave, typically calling in before the start of her 10:45 p.m. to 6:45 a.m. night shift to say she wouldn’t be at work. Her supervisors became suspicious when the frequency of her leave requests increased during the summer months because they knew that she worked part-time at her husband’s lawn-mowing business. The company therefore hired an off-duty police officer to monitor her activities.

In October 2005, Vail’s doctor told her she shouldn’t work for the next 24 hours after taking a new blood pressure medication, and she called in to say she wouldn’t be at work that night. The next morning, the investigator observed her mowing the lawn at a cemetery serviced by her husband’s business. She then called in and requested FMLA leave for her shift that night because of the onset of a migraine. After the company terminated her, she sued, claiming job protection under the FMLA.

The Seventh Circuit held that the employer didn’t violate Vail’s FMLA rights because it had an honest suspicion that she was abusing her leave. Despite a doctor’s note attempting to explain her condition, which the company received the same day she was observed mowing, the court found that the employer honestly believed she was “gaming” her FMLA leave because its investigation reinforced its suspicion that she wasn’t using her leave for its intended purpose.

Although the court noted that surveillance by an off-duty police officer “may not be preferred employer behavior,” its holding reinforces the fact that you may legally monitor how employees use FMLA leave and even terminate them for abusing leave. Vail v. Raybestos Products Co.

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School calls flagrant foul on Giants fan
The same can be true for employees claiming disabilities under the ADA and asking for related accommodations. Earlier this year, the Third Circuit (which reviews cases from Pennsylvania, Delaware, and New Jersey) considered a case that involved surveillance in the ADA context.

Charles Weisberg had been employed for more than 25 years as the director of a Child Study Team for a school system when a four-pound wooden speaker fell and struck him on the head and shoulders. He claimed the injury led to “post-concussion syndrome,” which caused him extreme fatigue, difficulty focusing, headaches, and sensitivity to loud noises. He asked to have all directives in writing, work a maximum of eight hours per day, and work in a quiet, distraction-free environment. He said he was no longer able to chaperone school events like basketball games and school dances because of his sensitivity to loud noises.

Finding the accommodations the school system was willing to offer him unsatisfactory, Weisberg filed suit. During his deposition, an attorney for the employer asked about his whereabouts the previous Monday night. Weisberg replied that he had watched a New York Giants football game at home. Upon further questioning, he insisted that he couldn’t possibly have attended the game because if he had, he would have been too fatigued to work the next day.

Unbeknownst to Weisberg, however, a private investigator for the school system had videotaped him that Monday night meeting with a group of fans, driving to Giants Stadium, tailgating in the parking lot, attending the entire game, leaving the stadium after midnight, and returning home a little before 2:00 a.m. He worked the full day after the game. As you might expect, the court dismissed his claims that the school system failed to properly accommodate his disability.

Based on the blatant inaccuracy of his testimony, the school system asked the court to order Weisberg to pay its legal fees for defending the case. He avoided the fee award by claiming “false memory syndrome” and presenting a letter from a doctor stating that people with brain injuries who are placed under stressful conditions sometimes concoct stories they sincerely believe to be true. Although the doctor didn’t actually diagnose Weisberg with the syndrome, his wife and a friend claimed to have witnessed him engaging in similar behavior on other occasions, and the court found their testimony sufficient to allow him to escape liability.

The school system still had to bear the cost of its defense, but its surveillance at least led to a clean victory on Weisberg’s accommodation claims. Weisberg v. Riverside Township Board of Education.

Internal Investigations: A Practical Training Course for HR

Psst . . . need any car parts, mister?
The third and most recent decision in our trilogy was issued by the U.S. District Court for the Northern District of Indiana in August 2008. Paul Davis had wrist surgery and remained off work because of restrictions that prevented him from performing the physical tasks of his assembly job at Subaru at the required pace. An HR representative then received two anonymous telephone messages that he was selling auto parts from his home. Subaru hired two private investigators to pose as potential customers and contact him.

Both investigators reported that Davis was operating an auto parts business from his home and had attempted to sell or actually sold them auto parts. They also provided information about his Internet business.

Subaru’s leave policy stated that an employee “may not accept gainful employment during a non-occupational medical leave of absence” during normal working hours. As a result, the company treated Davis as having voluntarily resigned his employment. He challenged Subaru’s action, claiming the information provided by the investigators was inaccurate.

The court, applying the same “honest belief” standard the Seventh Circuit used in the Vail case, held that Subaru’s honest suspicion that Davis wasn’t using his leave for its intended purpose was sufficient for it to prevail, regardless of whether the investigative reports were accurate. Davis v. Subaru of Indiana Automotive, Inc.

What can you do?
These three cases help illustrate when surveillance may be appropriate and effective — if it’s conducted with care. Here are some good practices to follow when you’re considering surveillance of employees who are requesting leave or accommodations based on medical conditions:

  • Have a good reason. In both the Vail and Davis cases, the courts emphasized that employee surveillance isn’t a “preferred practice.” Consider using surveillance only when you have sufficient reason to suspect abuse of leave or accommodations. Anonymous reports may provide sufficient reason.
  • Be consistent. An employee in a protected class who has been subjected to surveillance may argue that he was discriminated against if someone else outside his protected class who was reportedly abusing leave or demanding unneeded accommodations wasn’t similarly monitored. If you don’t order surveillance in all situations where abuse is reported, be prepared to explain why. Your explanation should be something more than a feeling that the employee who wasn’t monitored “just isn’t the type of person” who would abuse leave.
  • Select the right investigator. Resist the temptation to hire a coworker’s out-of-work cousin who has no experience with investigations but is immediately available and willing to work cheap. Use only experienced, trained investigators to get reliable information and avoid liability for illegal activities like invasion of privacy and trespass. Trained investigators can be expensive, but the cost of defending against claims arising from a bungled investigative effort can make those fees seem small by comparison.
  • Keep an open mind. Be prepared to accept the investigator’s findings, whatever they indicate. If an investigation doesn’t disclose any activity inconsistent with the leave or requested accommodation but you take punitive action against the employee anyway based on your firm conviction that he’s “gaming” the system, the surveillance may be more hurtful than helpful to your case.
  • Put any “honest belief” to the test. Before taking punitive action based on an investigative report that supports your suspicions, be prepared to fully defend your “honest belief” that the employee was abusing his medical leave benefits. One hundred percent certainty isn’t required, but your suspicion must be strong and honestly held to pass muster if it’s challenged.

Workplace Investigations: The HR Manager’s Step-by-Step Guide

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