Compliance Partner General Trip to Thailand...
Trip to Thailand Puts Spotlight on FMLA Abuse
By Dolly Clabault

Itís frustrating when employees abuse the time off theyíre entitled to under the Family and Medical Leave Act (FMLA), but what can you do?

If you honestly believe the employee is being less than honest, an investigation is the place to begin. Thatís how one employer won a case involving an employee with a bad back and a desire for an exotic vacation.

The case

In January, Kyle began planning a trip to Thailand. He asked for time off but the request was denied because he did not have enough accrued paid time off available.

Fast forward to March. Kyleís doctor diagnosed him with a back condition affecting his ability to sit for long stretches. The employer approved his request for FMLA leave, which was to last at least into June.

Kyle apparently saw this as an opportunity to take his planned April trip, which involved a long plane ride.

Threats to coworkers

Kyleís coworkers learned that he had taken the trip and reported it to company management.

This did not sit well with Kyle, who responded by threatening the coworkers. The coworkers then shared the threats with company management.

Curt reaction

The employer called Kyle as part of its investigation into FMLA abuse and the threats. Kyle cut the call short before the employer could discuss the threats and referred the employer to his doctor.

The next day, the employer called Kyle again about its concerns he was dishonest about the medical leave, since Kyle was unable to sit for long periods and the trip involved a plane ride with long periods of sitting.

Kyle again cut the call short. Taking another route, the employer sent an email to Kyle to set up a time to discuss the threats.

When Kyle didnít reply by the indicated deadline, the employer sent a follow-up email terminating Kyle for violating company policies against dishonesty, unethical conduct, and violence.

Misuse isnít protected

Kyle sued, arguing that the employer interfered with his FMLA rights.

The court sided with the employer, however, indicating that employers are under no obligation to reinstate an employee who misuses leave.

The employer had an honest belief that Kyle was abusing FMLA leave. It was plain that Kyle took FMLA leave due to his condition, and then took a trip that was counter to the condition.

Honestly suspect abuse? Take action

Employers may act when they have honest suspicions that an employee is not using leave for its intended purpose.

Even if the employer in this case could have conducted a more thorough investigation, it was not required to do so. The honest suspicion was enough.

The fact that Kyle threatened his coworkers was also enough for the employer to terminate him, as the company had a zero-tolerance policy against threats of violence. Kyle would have been fired for the threats regardless of whether he took FMLA leave.

If you suspect that an employee may be abusing leave, ask yourself if this is an honest belief. If it is, do a bit of investigating. If itís a case of FMLA abuse, you donít have to tolerate it.

Smith v. Yelp, Inc., N. D. of Illinois Eastern Division, No. 20-cv-1166, March 30, 2021

Dolly Clabault is an editor at J. J. Keller & Associates, Inc. She specializes in the Family and Medical Leave Act (FMLA).

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