In a recent opinion, the 4th Circuit held that an employee failed to show that his former employer’s stated reason for discharging him was a pretext, or excuse, for retaliation based on his use of leave under the Family and Medical Leave Act (FMLA).
The employee had been approved to take intermittent medical leave for an anxiety disorder, but he was fired for misusing his medical leave during a vacation and then later lying to his employer about it. The case highlights a recent trend of courts generally siding with employers in situations involving FMLA abuse.
In 2014, United Airlines won in a similar case in Colorado against an employee who took medical leave immediately before taking a month-long vacation. In another case, the 6th Circuit found in favor of Cincinnati Bell Telephone Company on an FMLA claim by an employee who was spotted at an Oktoberfest celebration while he was out on medical leave.
Although employers may be hesitant to discipline or terminate employees who are on FMLA leave, these recent decisions emphasize that courts are likely to side with the employer as long as it conducts an investigation and allows the employee an opportunity to explain himself.
The 6th Circuit clarified, “[The] FMLA does not shield an employee from termination simply because the alleged conduct [involves the] use of FMLA leave.” And while the FMLA serves the important purpose of allowing employees to take leave for legitimate family needs and medical reasons, employees who fraudulently misuse leave are not protected by the Act’s provisions.
Reasonably Informed and Considered Decisions Are Key
In some recent cases, employees were unable to show their employer’s explanation for discharging them was pretextual. In evaluating an employer’s intent and the question of pretext, courts may consider, among other things, the historical background of the employer’s decision, the sequence of events leading up to the adverse action, any departures from the normal procedural process, and any contemporary statements by decision makers.
In the case described at the beginning of this article, the employee argued that the employer’s investigation into his allegedly fraudulent use of FMLA leave wasn’t detailed enough. However, the 4th Circuit noted, “The key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment decision.” The court emphasized that the employer had no obligation to pursue an additional investigation when it had more than ample reason to believe that the employee had lied.
Further, fraud and dishonesty are lawful nonretaliatory bases for termination. The employee made dishonest statements in violation of company policy during the employer’s investigation, which the court considered grounds for termination. And even if an employer has no policy addressing the subject, courts have held that employee dishonesty is a legitimate reason for termination.
If you suspect that an employee might be misusing FMLA leave, the first step is to conduct an investigation in which you review time records and other relevant documents, interview witnesses, and give the employee an opportunity to present his version of events.
Your investigation need not be painstakingly detailed, but it must be thorough enough to allow a court to conclude that you made a reasonably informed and considered decision before taking action against the employee. Implementing a policy that requires employees to be honest will also be helpful if an employee lies during an investigation and later claims retaliatory discharge.
The bottom line is that although employers are prohibited from denying valid requests for FMLA leave or retaliating against employees for legitimately using such leave, courts continue to conclude that employees who fraudulently obtain or use FMLA leave will be unable to establish that their discharge was a pretext for retaliation. As a result, these cases are often disposed of on summary judgment (i.e., dismissed without a trial) in favor of the employer.
Samantha Chapman is a member of Faegre Baker Daniels’ labor and employment group, and editor of Indiana Employment Law Letter.