Last month, the Sixth Circuit Court of Appeals rejected a claim from an employee following her termination after the employer discovered Facebook pictures of her partying while she was supposedly incapacitated from working.

Jaszczyszyn v. Advantage Health Physician Network involved an employee who had been placed on intermittent Family and Medical Leave for back pain. Her doctor's certification said that she was periodically incapacitated from working, and needed to sit or lie down. While on such leave, the plaintiff posted pictures to her Facebook page showing her drinking at a local beer festival over an eight-hour period. A co-worker who had been friended by the plaintiff shared the pictures with the employer which promptly fired the plaintiff for fraud. She sued, claiming that the employer had interfered with and retaliated against her under the FMLA.

The Sixth Circuit affirmed dismissal of the claim on summary judgment. The court rejected the plaintiff's explanation that she was in pain while attending the festival, and that her attendance was consistent with her medical condition. Regardless of the medical legitimacy of her claim, the employer had an honest belief that her behavior was fraudulent. The plaintiff never offered any evidence that the employer acted for any other reason. As a matter of law, this did not meet the standard for FMLA interference or retaliation.

Despite this holding, in most cases employers faced with these situations should take the time to investigate the circumstances and determine whether the absent employee's behavior is demonstrably inconsistent with their medical certification. Most employers are not medical experts, and even seemingly clear cases of fraud can be challenged by physician claims that the employee could not work, but could engage in some observed activity.