HR Management & Compliance

Facebook Photos of Employee at Festival Suggest FMLA Abuse, Court Finds

Employees are learning the hard way that anything they say or post via online social network sites can and will be used against them in a court of law. This includes incriminating photographs that catch them in the act of fraudulently taking a leave of absence under the Family and Medical Leave Act. A recent ruling by the 6th U.S. Circuit Court of Appeals concerns just such a situation. The case is Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697 (6th Cir. Nov. 7, 2012).

The case depicts a Michigan woman who claimed to be “completely incapacitated” and unable to work because of a back injury. Facebook photos — pictures of her drinking beer at a local heritage festival — demonstrated otherwise to her peers and superiors. The photos also provided enough judicial evidence for her employer to form an “honest suspicion” of leave abuse and lawfully terminate her position, according to the affirmed summary judgment of the U.S. District Court for the Western District of Michigan.

Facts of the Case

Sara Jaszczyszyn, a customer service rep, worked at Advantage Health Physician Network. Eighteen months into her employment, she began having worsening back pain from an injury that she had sustained in a car accident 10 years before joining Advantage. In turn, she requested intermittent FMLA leave for her condition and submitted a physician-signed and authorized “Certification of Health Care Provider for Employee’s Serious Health Condition” form.

The medical certification specified a need for intermittent FMLA leave — for Jaszczyszyn to take whenever she was experiencing a “flare up.” She treated the leave as continuous and open-ended and never returned or attempted to return to work after receiving leave approval. Advantage’s HR manager said she never sought a second opinion because “there did not seem to be any question as to the legitimacy of the certification.”

The certification form, however, had several sections that were incomplete or left unanswered altogether, including the question as to whether the incapacitation was continuous or intermittent. The parts that were completed in full reflected a need for intermittent leave contingent upon (“if and only”) a flare up.

Advantage said it had to remind Jaszczyszyn repeatedly to notify her supervisor each day that her pain prevented her from coming to work. Despite Jaszczyszyn’s difficulty with submitting the requisite paperwork and giving proper and timely notice, Advantage treated her absences as intermittent FMLA leave and her supervisor authorized her request for income protection plan payments (or short-term disability benefits).

Several weeks into her first leave, Jaszczyszyn received another examination and treatment plan from her physician, who diagnosed her as having recurrence of severe lumbago with lower extremity radiculopathy. He indicated on a second work release form that she was “completely incapacitated” and extended her projected length of disability for three additional weeks.

Three days later, on the same weekend that she left multiple voicemails for her supervisor stating that she was in too much pain to attend work on Monday, Jaszczyszyn attended Pulaski Days, a local Polish heritage festival, and visited three Polish Halls with a group of friends. More than 130 Facebook photo postings made these activities clear.

Several of Jaszczyszyn’s coworkers including her supervisor — Facebook friends, all — could see the photos because the network makes them visible to “friends” unless the user blocks certain individuals by adjusting her account’s privacy settings.

A coworker complained about the photos because she said that staff members “felt a little betrayed or duped because they were trying to cover [work duties for Jaszczyszyn] only to see her out on Facebook partying.”

Because Jaszczyszyn had not offered a reasonable explanation, Advantage fired her for FMLA fraud.

For complete case coverage, see the entire article at Thompson’s HR Compliance Expert.

Additional Resources

FMLA Compliance Plus

HR Intelligence articles: “Leave Abuse and Honest Belief Rule” and “Absence and Notice Policies Help Mitigate FMLA Fallout.”

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