You’ve seen the pattern before – suspicious use of intermittent leave under the Family and Medical Leave Act (“FMLA”) – Fridays and Mondays, leave taken around holidays, and leave taken in connection with already approved vacation. What is the best way to determine whether the employee is actually using FMLA for its intended purpose? A recent federal appellate court case provides excellent guidance on how to approach these challenging cases and how to win in court should the employee assert FMLA interference or retaliation claims.

The employee in the case helped customers troubleshoot telephone and computer problems and was often required to work less desirable evening, night, and weekend shifts. A few years after he began working at the employer, he was diagnosed with lumbar degenerative disease, a chronic back condition. With the condition allegedly causing him exacerbated pain two to three days a month, the employee requested and was granted fully paid intermittent FMLA for flare-ups and for doctor’s appointments. His employer, however, began noticing suspicious patterns in the timing of his FMLA requests.

In particular, the usage of his intermittent FMLA began to exceed the frequency of his approved leave, using two to six days of FMLA for almost each month in 2007. Equally significant, from October through December 2007, his FMLA days routinely fell on Fridays and weekends, resulting in him having three-day or four-day weekends for the majority of weeks during those months. The pattern continued into 2008, when the employee frequently used FMLA adjacent to already scheduled days off or holidays, often extending his vacation or holidays by one or two extra days. Finally, Tillman often notified his supervisor in advance that he intended to use FMLA on a future date, sometimes several days in advance. On December 1, 2008, for example, he emailed his supervisor that if he ended up on an evening shift, he would be taking FMLA on December 13.

Armed with these facts, the employer investigated. It obtained a calendar of the employee’s FMLA usage and compared them to weekends, his scheduled vacation days, and holidays. It also conducted surveillance and observed him driving, running errands, and working in his garage during two days when he called off on FMLA. Also, the employer retained an outside medical consultant to review his medical certification forms, the employee’s job description, and the private investigator’s surveillance videos and logs. Based on this information, the independent medical doctor concluded that, in her professional opinion, the employee’s activities were inconsistent with the physical behaviors typical of someone with incapacitating back pain and he was not incapacitated, as defined by the FMLA, from performing his job on the dates in question. Finally, the employer interviewed the employee and he conceded that he “drove people around” during his FMLA, but quibbled that he may have been taking painkillers that would have prevented him from working. Following the investigation, and after consultation with legal advisors, the company terminated his employment.

Not surprisingly given these facts, the appellate court upheld the dismissal of the employee’s lawsuit. In dismissing his FMLA retaliation claim, the court found that the employer had an honest belief that the employee abused FMLA. It recognized that the company established a “reasonable reliance” on the particular facts before making its termination decision, including reviewing the calendar, emails from the employee, the surveillance tapes, and the independent medical opinion. The court also dismissed his FMLA interference claim, holding that the employee did not establish he was qualified for FMLA leave on the dates in question.

The case demonstrates how thoughtful investigation and common sense can help you successfully tackle FMLA abuse cases and minimize risks of lawsuits. In textbook form, the company used all of the following available resources to investigate potential FMLA abuse. While not all are necessarily warranted in some cases, adopting one or more of these strategies usually is advisable:

  • Adopting a policy that permitted dismissal for fraudulent conduct, including misuse of FMLA;
  • Requiring employees to provide medical certification for FMLA leave;
  • Analyzing patterns of FMLA abuse correlated with weekends, Fridays and Mondays, and holidays, and advance leave requests;
  • Hiring a private investigator to conduct surveillance;
  • Consulting with an outside medical professional who reviews the file and provides an expert opinion concerning the employee’s use of
    FMLA leave; and
  • Interviewing the employee to see if the employee has a credible explanation.