Dear Sheila,

We have an employee who is medically certified to take intermittent leave under the Family and Medical Leave Act (FMLA) for severe shoulder pain when he has a “flare-up.” His job requires repetitive shoulder movements with his arms outstretched in front of him. We have noticed that he always takes his FMLA days in conjunction with a weekend or holiday, or before a planned vacation. After seeing the pattern, we hired an investigator who videotaped the employee playing golf both times he was surveilled. His golf swing looked pretty good! It seems to us that if he can golf unimpaired, then he can work. When confronted, the employee responded that his pain is always there, so it helps him to rest it for long weekends. He also says that golf puts lesser strain on his shoulders than his job. Can we fire him?

Signed,

Suspicious


Dear Suspicious,

In a recent case out of the Sixth Circuit Court of Appeals (LaBelle v. Cleveland Cliffs [6th Cir. 2019]) the Court addressed a similar issue. After being fired under these facts, the employee sued the employer for interference with his FMLA rights and retaliation for taking FMLA. The Court held for the employer, and found that the employee was fired for the legitimate, non-discriminatory reasons of fraud and abuse (not use) of FMLA leave. Of importance to the Court was that the terms of the FMLA intermittent leave required either medical appointments or specific flare-ups of increased pain, and were not for periodic resting of his shoulder when the pain level hadn’t changed. In other words, his absences must be medically necessary, and the days off to extend time off and play golf were inconsistent with a claimed inability to work.

Before going ahead with this termination, be sure you have your facts in order. First, make sure that the way he is using his leave does indeed violate the terms of the intermittent leave. For example, if the certification allows for resting the shoulder monthly without the need for a flare-up or inability to work, then taking the leave when it is convenient for the employee may not be a violation by itself. If the activities performed while on leave are not inconsistent with the need for leave, then they might not be abusive of the terms of the leave. When an employee is unable to work, there still might be other activities he can do. In your case, however, it does seem that swinging a golf club is inconsistent with leave for shoulder pain. You should have a conversation (documented) with the employee before making your final decision.

In LaBelle, the employer approved the FMLA request based on 1) attending medical appointments and 2) taking time off approximately monthly for “flare-ups.” The Court stated, “if LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for the purpose.”

Also, be aware of whether there are any internal communications showing management hostility to the employee using FMLA. Intermittent leave can be frustrating to managers, and internal emails and other communications, although private, will be revealed in litigation, unless the communications were with an attorney. In LaBelle, although the employer won, internal communications made that win a bit more bumpy, based on management emails talking about “getting rid of the slackers.”

So, bottom line, you can likely terminate this employee for leave abuse and fraud, so long as you are confident his leave is in violation of the terms of his intermittent FMLA, his activities on leave are inconsistent with his need to be off work, and there are no “smoking gun” statements floating around that would make the employer appear to be retaliatory or hostile to FMLA leave.


“Ask Sheila” is prepared by Sheila Gladstone, Chair of the Firm’s Employment Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.

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