March 30, 2021

Thinking Isn’t Knowing: FMLA Use & Abuse

You think an employee is misusing Family and Medical Leave Act (FMLA) leave by taking it for a reason that the FMLA did not intend (to travel overseas and visit family members).  You fire the employee for dishonesty. The employee sues you for FMLA interference and retaliation.  Are you in trouble if what you thought you knew turns out to be wrong?

One court recently said, “No.”   Why?  An employee is only entitled to reinstatement if the employee “takes leave for the intended purpose of the leave…An employer is not obligated to reinstate an employee who misuses disability leave.” In addition, an employee is “not entitled to reinstatement if [the employee] would have been fired regardless of whether she took the FMLA leave…The employee only gets the same employment terms she had when she left — nothing more.”

Lessons learned? Don’t take this as an FMLA hall pass.  The employer may have been saved in the case because it fired the employee for a mistaken reason, not because the employee took FMLA leave.  That does not mean the employee might not be subject to liability for some other claim, like wrongful discharge, or unlawful discrimination if the employer did not fire other employees it thought provided false information.

  1. Conduct prompt and proper investigations.
  2. Be consistent with your policy and past practice.
  3. This was one court in one state; others might reach a different conclusion.