Employers subject to the requirements of the Family Medical Leave Act are often concerned about the abuse of such leave by employees.  The employer learns from co-workers that the employee on FMLA leave due to supposed medical restrictions was observed engaged in physical activities incompatible with those restrictions.

In a new Seventh Circuit Court of Appeals decision, Vail v. Raybestos Products Co., the employer received tips from other employees that the plaintiff was abusing her intermittent FMLA leave which she was taking due to migraine headaches.  More specifically, the employer was told that the plaintiff was using her leave time to assist her husband with his lawn mowing business.  As a result of these tips, the employer hired an off-duty police officer to investigate.  The investigator witnessed the plaintiff cutting the grass for several of her husband’s clients while using intermittent leave.  Relying on the off-duty officer’s report, the employer refused to reinstate the plaintiff upon her return from leave and terminated her employment for fraud.

The plaintiff sued her employer, alleging interference with her reinstatement rights under the FMLA.  The Seventh Circuit found that the employer was entitled to terminate the plaintiff’s employment because it had an “honest suspicion,” based on employee tips and the officer’s observations, that she had committed fraud.  As a result of this suspicion, the Court reasoned that the employer could not have had an improper motive in terminating her employment.

Employers should exercise caution before terminating an employee for FMLA fraud.  While this case illustrates that employers may lawfully discharge an employee who abuses leave by taking it for unintended purposes, the employer should have clear and definite proof that the employee is abusing FMLA.  In some cases, the employee’s physician will try to contend that the observed activity is compatible with the earlier medical restrictions.  The employer may want to consult with its own physician before concluding that the employee is engaged in fraud.