HR Management & Compliance

On second thought, maybe it would be smart to monitor employees on FMLA leave

Photo: Todd Leeuwenburgh

Employers should not fire workers in response to them taking valid FMLA leave.  But firing can be justified when employees use FMLA leave (1) in a way that violates the employer’s policy manual, (2) to cover up for underperformance, (3) to retaliate against their employers or (4) as carte blanche to miss endless hours of work.
According to the law firm JD Supra, the following appeals court rulings show that there are legitimate reason an employee can be fired if he or she is clearly using FMLA leave improperly. Here are some recent examples.

Employee doesn’t adequately demonstrate a need for FMLA leave: After being passed up for a promotion, one employee said she developed post traumatic stress disorder and asserted her right for FMLA leave. The employer (U.S. Air Force) requested a DOL WH-380 medical certification form to support her FMLA request for leave. She refused to submit that form, and employer terminated her. The 9th U.S. Circuit Court of Appeals backed the Air Force.

Employee uses FMLA leave for non-caretaker activities: In this case, an employee was not in Miami taking care of his injured daughter (which was the reason he claimed FMLA leave). Instead he was in Texas, taking care of his residence. After his company, McLane Foodservice, terminated him, the 5th U.S. Circuit Court of Appeals said he had no retaliation claim.

Photo: Todd Leeuwenburgh

Employee disregards workplace FMLA leave policies:

An employee was dismissed after taking an unapproved week-long vacation in Mexico while on FMLA leave, supposedly to recover from surgery. She did not inform her employer she would be leaving the country, nor did she request permission to travel. This was significant, according to this ruling by the U.S. District Court for the Western District of Pennsylvania, because CWA’s work rules specifically required employees to “remain in the immediate vicinity” of their home while using sick leave.

Employee abuses workplace FMLA leave policies: In another case, it became apparent that an employee was using FMLA leave to buttress holidays and vacations, under the pretext of a back injury. The employer counted 35 times that his back issues flared up on the days just before or after his previously scheduled time off, says this ruling by the federal district court in Utah.

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