Want to fire your employee for FMLA fraud?

Don't shoot from the hip.

Let's say you have an employee who is in Week Six of "employee's own serious health condition" leave under the Family and Medical Leave Act.

Her co-worker comes to you and tells you that the employee on FMLA leave was seen working on Monday, and then headed out for a nice vacation on Friday.

If this isn't ground for immediate termination, what is? It's falsification, which always results in termination on first offense! The FMLA doesn't shield an employee from the consequences of her misconduct! See, e.g., 29 C.F.R. Section 825.216(d)!

The co-worker follows up and sends you two Facebook posts from the employee. One, posted on Monday, shows her sitting behind the table at a gun show. The other, posted on Saturday, shows her in a lounge chair on the shore of a beautiful turquoise body of water, surrounded by white sand, palm trees, and flamingos. You got her!

EXHIBIT A. This is the sign to the gun show where she worked.
EXHBIT B. The beach was just like this, only with palm trees and flamingos.

When the employee returns from her vacay, she calls you, and you fire her. You're too angry to even tell her why, but it doesn't matter because she knows what she did.

Not long after the termination, she sues your company. You're not concerned. Your company's lawyers intend to "defend vigorously," as they say.

But . . .

Here's a little background. Your ex-employee was a machine operator in your manufacturing plant. The job required her to stand and walk for almost all of an eight-hour shift, except for breaks. She had to take FMLA leave because she injured her knee. That made it impossible for her to stand for long periods or to walk, and you had no other jobs available that she could do, with or without a reasonable accommodation.

Bigger but

Hmm. As the lawsuit progresses, more facts emerge. 

It turns out that the employee missed her job and was going stir-crazy at home, and the gun show was coming. She asked her doctor, and the doctor said it was ok for her to work at the gun show as long as she'd be sitting most of the day and didn't do any heavy lifting. So that's exactly what she did. She sat at a table all day, chatting with the customers and being in charge of the cash box. She let the others do the walking and lifting. It was fun and really helped her spirits. At least, it did until you fired her a week later.

And that trip? She and her husband pre-purchased their Caribbean vacation in St. Awesome months before she she injured her knee. The tickets and hotel reservations were non-refundable. Even so, she checked with her doctor, who told her that the trip was fine as long as she used a wheelchair in the airport and lounged around on the beach all day after she got there. So that's exactly what she did. 

In hindsight, she admits she should have explained this to you in advance in case you heard about it from someone else. And she was calling you to explain it the day you fired her, but you wouldn't give her a chance.

Will you be able to prevail in the employee's lawsuit? Hmm.

Burnett v. Tallahatchie School District

My scenario is loosely based on a real court decision. The court in the real case decided that the employee's claims against her employer could go to a jury.

The real plaintiff was a child nutrition director for a Mississippi school district who went on a five-day trip to Jamaica while she was on FMLA leave. When the superintendent found out about it, he had a cow and fired her, allegedly without telling her why she was being fired. Like our fictional employee, the nutrition director had checked with her doctor in advance, and her doctor had approved the trip.

Mini Quiz: Did the nutrition director sue for FMLA interference, or for FMLA retaliation?

Answer: It's a trick question. She sued for race discrimination.


The nutrition director, who was white, claimed that the superintendent, who was Black, discriminated against white women, and she found several other white current and former co-workers who backed her up. In her own case, the mistreatment consisted of abruptly firing her without explanation while she was on FMLA leave and following her doctor's orders. And, in case you forgot, which I'm sure you didn't, the judge has said that her claims will go to a jury.

Don't shoot from the hip

Of course, employees do sometimes do get caught faking workers' comp injuries, taking fraudulent FMLA leave, or just calling in sick when they're not. Those are all legitimate grounds for termination. But don't shoot from the hip. If it turns out that the employee's activity was consistent with her alleged medical condition and that the activity had been authorized by her health care provider, then the leave is almost certainly not fraudulent. Which means that if you fire without considering these possibilities and conducting an adequate investigation, you could be liable -- in one way or another -- for terminating an employee on a legitimate FMLA leave.

Image Credits: Gun show poster from flickr, Creative Commons license, by Mike Licht. Beach picture from Adobe Stock.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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