Employees approved for unscheduled intermittent Family and Medical Leave (FMLA) can drive their employers crazy. While most such employees use the leave responsibly for true medical conditions, employers sometimes notice a pattern of requests for intermittent leave to extend weekends, holidays and vacation time. Employers are understandably hesitant to challenge these requests due to the lack of medical certainty. However, last Monday the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) upheld an employer’s termination of an employee for falsifying his need for intermittent FMLA leave.

In Sharif v. United Airlines, Inc., the plaintiff had been approved for intermittent FMLA leave due to anxiety and panic attacks. He had accumulated significant time off and traveled to South Africa for a family vacation. However, toward the end of the vacation, he was scheduled to work at Dulles airport. He called in sick from South Africa, claiming that he had suffered a panic attack and therefore needed FMLA leave to cover the one scheduled shift before his return to the U.S. United began an investigation of the absence. The plaintiff changed his explanation for the absence several times, and the employer eventually concluded that there was no feasible way for him to have returned to Dulles for the missed shift. It concluded that he had submitted a fraudulent FMLA request and terminated his employment. He sued, claiming interference with his FMLA rights.

The Fourth Circuit affirmed dismissal of the claim on summary judgment. The court concluded that the plaintiff’s explanation of the circumstances made little sense given the fact that he was in South Africa when he called in sick. Logically, he could not have returned for his scheduled shift under any circumstances. When combined with his shifting stories, United reasonably concluded that the plaintiff had never intended to return to work that day, and that his FMLA notice was made for the purpose of extending his vacation.

In most situations, employers will not have this degree of evidence clear enough to determine fraud. A mere pattern of absences connected to other time taken by the employee will not suffice to defend a claim of FMLA retaliation. However employers commonly face circumstances where an employee requests vacation time, has that request denied, and then takes the vacation and calls in claiming an FMLA serious health condition. The employer is well within its rights to investigate the circumstances, question the employee, and take appropriate disciplinary action in the event of solid evidence of fraud or abuse.