Thursday, October 10, 2013

How to handle the malingering FMLA abuser

Let’s say you have an employee who claims to be suffering from a chronic back injury. He even has doctor’s notes certifying that his back pain impairs his “ability to lift, to carry heavy objects, to bend repeatedly, or actually bend at the waist.” So, you grant the employee intermittent leave under the FMLA, which the employee uses several times each month. But, you start to notice a pattern. The employee’s FMLA-protected days off always seem to bookend weekends and holidays. As a result, HR initiates an investigation, which includes surveillance of the employee. That surveillance uncovers that while the employee is home supposedly resting his painful back, he is actually going out for coffee, shopping, and working in his garage repeatedly bending down, lifting pieces of wood, and carrying them into his house. When confronted, the employee suggests that “‘maybe’ his doctor had given him a shot of Cortisone earlier in the day.” Unimpressed, the employer ultimately terminates the employee for “fraudulent or illegal conduct.”

In Tillman v. Ohio Bell Tel. Co. [pdf], the 6th Circuit affirmed the trial court’s dismissal of the employee’s FMLA retaliation and interference claims. The court concluded that Tillman could not pursue his retaliation claim because the company “held an honest belief that Tillman had abused his FMLA leave and violated the company Code of Business Conduct,” and could not pursue his interference claim because, whether or not the “honest belief rule” applies to interference claims, Tillman was not entitled to FMLA leave on days on which he was not actually suffering from a serious health condition.

This case is a great lesson for employers on how to build a case to support a termination decision. If you believe that an employee is abusing FMLA leave, build your case. Uncover enough facts to support your belief that that employee is committing fraud and otherwise not entitled to leave. Armed with that evidence, a court is unlikely to overturn your decision. While it may cost you a little extra up front in investigatory costs, you will save money on the backend both in litigation costs and future abuses by employees deterred from malingering.