The federal Family and Medical Leave Act allows employees to take up to 12 workweeks' worth of unpaid leave within a 12-month period for specific reasons. The leave can be taken as a single block or intermittently for shorter periods. It's illegal for employers to interfere with, restrain or deny employees' lawful FMLA leave -- or to retaliate against employees who take it.
Yet sometimes employees abuse FMLA leave, especially intermittent leave. If an employer sincerely suspects that a worker's FMLA leave is illegitimate, can it take action? Or would disciplining or firing that employee be considered retaliation?
The answer depends in part on how the employer handles the situation. It may also depend on the geographic location of the employee, as several federal circuit courts have made different rulings. Maryland is in the 4th Circuit, which has not ruled on the issue. However, the 3rd, 6th, 7th, 9th, 10th and 11th circuits have, and they are somewhat divided.
As we've discussed before, federal FMLA leave can be taken after the birth or adoption of a child, to deal with a serious health condition or to care for certain close family members' health conditions. In certain circumstances, however, employees may be tempted to use FMLA leave after exhausting their paid time off.
According to the Society for Human Resource Management, the majority of federal circuits have upheld negative job actions when they are based on an employer's honest belief that the employee's FMLA leave was abusive.
In a 2017 3rd Circuit case, for example, an employee with leg pain was arrested for DUI on a day when he had taken FMLA leave.
An HR manager read about his arrest in the newspaper and became suspicious. Further research revealed that some of the employee's intermittent leave coincided with his arrest and court dates, and he was fired. The employer's honest belief that the leave was improper justified the firing, said the 3rd Circuit, and defeated the worker's retaliation claim. This was true even if the HR manager's honest belief was mistaken. It's important to note that several circuits have required the honest belief and the employer's actions to be reasonable.
If you have an employee who may be abusing FMLA leave, your first step is to conduct an investigation. Disciplining or firing an employee based on suspicion alone is unlikely to be viewed as reasonable. Talk to the employee, as well. They may be able to assuage your suspicions, or they may admit their abuse of leave and agree to the response you propose. You should also contact your employment law counsel about proper termination procedures and any court cases affecting your jurisdiction.