By: Claudia D. Orr, Plunkett Cooney
I often hear from clients seeking advice when an employee is suspected of abusing their approved leave under the Family and Medical Leave Act (“FMLA”). Tell the truth, doesn’t this drive you crazy from time to time?
So what can a frustrated employer do? Well, the first step is to not approve FMLA leave if the Certification of Healthcare Provider is incomplete or contains internal inconsistencies. Send it back to the physician with questions seeking clarification or an instruction to respond to certain questions. Also, make sure that the information provided about the condition actually qualifies for FMLA leave. Finally, remember, you can always challenge the information/need by sending the employee for the second/third opinions. However, given the cost, I think I have only suggested that once or twice since the law was enacted.
Most of the frustration comes with intermittent leave under FMLA. When the employee is seeking intermittent leave, the employer should monitor the employee’s use of leave as compared to what the healthcare provider indicated on the certification. When the employee’s use is inconsistent with the predicted use, the employer can do two things: (1) send the employee back to the healthcare provider to get a new certification, or (2) hire a private investigator to catch the employee in fraudulent use.
While the first idea generally costs the employee another $20, it usually results in a much more broadly written certification that allows the employee to come and go without any restrictions on use. The second idea may be more expensive, but it can be fruitful. That is what the employer did in LaBelle v Cleveland Cliffs, Inc, a recent unpublished case by the US Court of Appeals for the Sixth Circuit. Let’s review what happened for inspiration!
The salient background facts are going to sound strikingly familiar. LaBelle, a long term employee, developed a medical condition as a result of repetitious motions at work. At first he received disciplinary actions for his attendance until he complained about his shoulder pain. That is when helpful management suggested that he “check into getting FMLA.” Boy, I bet they later kicked themselves for that one!
LaBelle did, but his FMLA request was denied. The employer told LaBelle that it was because “information LaBelle provided did not show that he was incapacitated for more than three calendar days at a time or that he had a chronic condition that required treatment at least twice a year.” Can I just say “TMI”? The employer provided LaBelle with a roadmap of how to fix the issue with the certification. So, LaBelle went to a different doctor who fixed the issue.
The new certification provided that LaBelle ‘“intermittently will have exacerbations that limit work’ and that it was medically necessary for LaBelle to miss work during ‘flare-ups,’ which would occur about once a month for three-day periods.” Thus, the FMLA leave was approved, but LaBelle was also told that “improper use or abuse of intermittent leave is grounds for discipline, up to and including termination.” That’s good. I might start adding language like that to my FMLA policies.
Well, as often happens LaBelle developed a “suspicious pattern” of FMLA leave which was tacked on to his scheduled days off or vacation days. This is where the private investigator comes in and we head towards our happy ending.
Because the employer knew that LaBelle liked to golf and that his league played on Tuesdays that was the day chosen for the investigator to surveil LaBelle. Management watched the videos of LaBelle playing “without any sign of distress or discomfort” with a golf swing that was both smooth and powerful. LaBelle was confronted with the fraud and placed on an administrative leave pending the outcome of the informal hearing. [I would probably would have gotten away with it because my swings are never smooth or powerful.] Following the hearing, management agreed that if LaBelle was able to golf, he was able to work. Thus, he was fired.
LaBelle filed a grievance, but the arbitrator found that his use of FMLA to play golf was inconsistent with LaBelle’s claim that he was unable to work and needed “to rest his shoulders from the rigors of his job.” Thus, the company had “just cause” to fire him.
LaBelle filed a civil lawsuit, claiming, in relevant part, that the company violated FMLA. The lawsuit was dismissed following discovery when the company’s motion for summary judgment was granted. LaBelle appealed.
The appellate court recognized that there are two types of FMLA claims: interference and retaliation. It found that the interference claim failed because Plaintiff was permitted to take all of the FMLA time he requested.
But the retaliation claim had a few stray comments from management to support it. For example, in response to a request for a spread sheet documenting LaBelle’s use, the area manager wrote “Does this mean that you’re actually discussing this hot potato?” In another email, he wrote “[b]een keeping an eye on a few of [their] folks and mapping out their absences” and “he would ‘dearly love to get at least one of these slackers.’”
But despite the comments, the appellate court found there was no evidence that the proffered reason for termination (FMLA abuse) had no basis in fact.
LaBelle had been approved intermittent FMLA leave (1) to attend medical appointments, and (2) up to three days off per month for a flare up. But, this is not why, according to LaBelle, that he took the time off. “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. Thus, as the arbitrator put it, ‘[t]here is no doubt that [LaBelle] did not use his FMLA leave in accordance with the restrictions imposed by [his doctor], or in accordance with the purposes of the law.’ If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.” Thus, the dismissal was affirmed.
Boy, that reasoning was thinly sliced. I don’t know if a different Sixth Circuit panel would have ruled on this basis. I would have just issued an opinion finding that he committed fraud; that golf was inconsistent with the need for time off for a shoulder injury. Period. But, nonetheless, score one for an employer in a FMLA abuse case.
Are you feeling a sense of satisfaction as well? These are not easy issues. Employers should always consult with an experienced employment attorney, such as the author, when faced with potential FMLA abuse.
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. December 2019.