Monday, September 16, 2019

Employee fired for stacking his intermittent FMLA leave with vacation days loses retaliation claim


Kevin LaBelle, a lab technician for Cleveland Cliffs, took occasional days off from work for approved intermittent FMLA leave for flare-ups related to a shoulder injury. His employer noticed that LaBelle seems to always take his FMLA leave by combining it with scheduled days off and vacation days.

Noticing the pattern of suspected abuse, the company hired a private investigator to watch LaBelle during his FMLA leave, and twice found him playing golf. The employer concluded that if LaBelle was experiencing a shoulder flare-up that prevented him from working, he would not be able to golf, and that if he could golf, he could work. Accordingly, it fired him for FMLA fraud and abuse.

The 6th Circuit affirmed the trial court’s dismissal of LaBelle’s FMLA retaliation claim:

There is no evidence in the record to show that Cliffs’ proffered reason lacked a basis in fact. Cliffs approved LaBelle’s request for intermittent FMLA leave for two reasons: (1) attending medical appointments and (2) taking three days off per month for a “flare-up.” Even crediting LaBelle’s explanation of why it was ok for him to golf, or why he “stacked” his leave, LaBelle did not take FMLA leave for “flare-ups” or medical appointments. He took FMLA leave because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.… If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.

Intermittent leave is (one of) the biggest FMLA-management problems for employers. And the “stacking” of intermittent leave against other scheduled days off is one of the biggest intermittent-leave management problems. This case gives employers a great tool to combat this form of FMLA abuse.

* Image by Roland Schwerdhöfer from Pixabay

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