Employers sometimes receive information about employees on medical leave that makes them question the legitimacy of the leave request. For example, an employee who is approved for Family and Medical Leave to care for a sick parent posts pictures on her Facebook page of her recent Caribbean cruise. When can employers use such information about activities inconsistent with medical leave to take disciplinary action against the employee? According to a new case from the Third Circuit Court of Appeals, the employer’s honest belief that FMLA leave was misused will serve as a legitimate defense to a later retaliation claim.

In Capps v. Mondelez Global, LLC, the plaintiff had received approval for intermittent FMLA leave based on a degenerative hip condition. He would call into work if his hip hurt too much to perform his regular job duties. The medical certification accompanying the FMLA leave request stated that at these times, the plaintiff was essentially confined to bed.

During one of these incidents, the plaintiff drove to a restaurant for dinner and was arrested on the way home for driving under the influence. After several court appearances, he was convicted of the offense and spent several days in jail. His employer learned of the conviction through local media, and began investigating the plaintiff’s FMLA absences. The company asked the plaintiff to provide information showing that the absences were for legitimate medical needs, and not to attend court hearings or serve the short jail sentence. While the plaintiff provided some doctor’s and attorney’s information, the employer noted that it did not account for all of the claimed needs for FMLA absences. As a result, the company fired the plaintiff for dishonesty.  He sued, claiming both retaliation and interference with his FMLA rights.

The Third Circuit affirmed dismissal of the claim. The court concluded that employers do not retaliate against employees under the FMLA if the company has a reasonable and honest belief that the employee engaged in FMLA fraud. Even if the plaintiff alleges that he can later demonstrate that all FMLA time was taken for legitimate medical needs, that honest belief would defeat a retaliation claim. In this situation, the failure to provide clear information during the company’s initial investigation of the circumstances provided grounds for the termination decision. The interference claim also fails because the plaintiff was never actually denied any FMLA request.  Each day requested was granted by the company.

Employers should be careful about terminating employees on FMLA leave based on conclusions that their actions are inconsistent with their medical status. In many cases, employees provide medical information stating that seemingly inconsistent activities are actually consistent with their diagnoses. However, in situations where the employer carefully investigates the matter and draws reasonable conclusions that the employee misled the company about the need for FMLA leave, courts will back the employer’s decision, even if the employee tries after the fact to justify the need for the absences.