A Defense for Employers to Fight FMLA Abuse

Don Knapp, Esq.
 

Under the Family and Medical Leave Act (FMLA), eligible employees can take up to twelve weeks of unpaid leave per year for a variety of reasons, including caring for close family members with serious health conditions.  An employee may use paid sick, personal or vacation leave as part of the FMLA leave.  An employer may not interfere with an employee’s exercise of this right and they cannot terminate an employee for taking FMLA leave.

 

Employers were without much recourse against employees who exploit the FMLA, until a 2012 Seventh Circuit decision.

In Scruggs v. Carrier Corp., the Seventh Circuit recently held that employers may terminate employees who are suspected of violating the FMLA as long as the employer has an “honest suspicion” or “honest belief” that the leave was being abused.  In other words, an employer can defeat a claim by the employee if they show that the employee did not take the leave “for the intended purpose.”

In Scruggs, an employee was fired after an investigation showed that he did not leave his house on a day that he claimed he was taking his mother to a medical appointment.  The investigation consisted of a private investigator hired by the employer to provide surveillance on the employee.  After being fired, the employee sued arguing that he did take his mother to her appointment and that the employer did not conduct a thorough investigation.  The Seventh Circuit ruled that the employer’s honest belief of abuse was sufficient to rule in their favor.  The decision provides some comfort to employers and allows them to more aggressively police employees abusing the FMLA. 

The Sixth Circuit similarly held this year, in Seeger v. Cincinnati Bell Telephone Co., that an employer can fire an employee as long as there is an honest suspicion of abuse.  The Sixth Circuit also ruled that an employer cannot rely on suspicion alone – some form of investigation must be conducted.  In Seeger, the Plaintiff’s co-workers saw him at a local Oktoberfest festival, walking unhindered despite his supposed back injury, and informed their employer.  This was sufficient to support the employer’s honest belief.

One thing is for sure – employers can now rest easier knowing they have a way of combatting employee abuse of the FMLA.