While the Family and Medical Leave Act (FMLA) is designed to protect employees who suffer from a qualifying "serious health condition that makes the employee unable to perform the functions of" their job, its administration can be fraught with difficulties, particularly concerning the misuse of leave.

Employers often encounter situations where they suspect employees of exploiting FMLA benefits, which may result in operational disruptions, increased absenteeism, and potential conflicts and mistrust within teams. It is often difficult, particularly where FMLA is taken intermittently, to determine whether every period of leave is for qualifying reasons.

Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) equipped employers with additional rights in investigating and combatting FMLA misuse by holding that where the employer has a legitimate basis for believing an employee committed misconduct related to use of FMLA leave, it may take disciplinary action — and even terminate — that employee without violating the FMLA.

In Shipton v. Baltimore Gas & Electric Co., an employee in August 2017 requested and was granted intermittent FMLA leave based on a health provider certification that he was diabetic and experienced episodes of hypoglycemia.

Several months later, in May 2018, the employee took intermittent FMLA leave for neuropathy, which was also related to his diabetes. But because his existing FMLA certification established leave only for his diabetes-related hypoglycemia (and not for neuropathy), the employer requested additional medical documentation.

The additional medical documentation, however, stated that the employee had not experienced hypoglycemia for over two years. Based on the conflicting medical documentation, including the August 2017 request for intermittent FMLA based on hypoglycemia and the May 2018 medical documentation stating that the employee had not suffered from hypoglycemia since at least May 2016, the employer suspected that the employee was not taking FMLA leave for an approved purpose. The employer subsequently terminated his employment.

On appeal from the district court’s grant of summary judgment for the employer, the Fourth Circuit found that:

• Employers May Investigate FMLA Misuse. Where the employer has a legitimate basis for believing an employee committed misconduct related to use of FMLA leave, it may investigate. Legitimate bases for suspected misuse include conflicting medical documentation, the employee’s failure to communicate properly about unscheduled absences, and plausible statements by the employee and co-workers. The investigation into the FMLA misuse may include fact-finding interviews with the employee and co-workers, and additional requests for medical documentation.
   
• Employers May Act on the Investigation’s Findings. Notably, even where the employee may not have been actually misusing leave, and where the employee later clarifies the FMLA certification or reason for leave, courts focus only on the "perception of the decisionmaker," and whether that perception was credible, legitimate, and nondiscriminatory — not "whether the reason was wise, fair, or even correct."

Further, the Fourth Circuit justified its grant of discretion to employers in making termination decisions by emphasizing that courts should not "sit as a kind of super-personnel department weighing the prudence of employment decisions."

Shipton affords additional guidance and protections to employers in combating FMLA misuse by holding that where an employer has a legitimate basis for believing an employee committed misconduct related to use of FMLA leave, it may investigate and take appropriate action against the employee.

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