The U.S. Court of Appeals for the Seventh Circuit recently upheld the dismissal of a lawsuit claiming an employer violated the FMLA by suspending its employee over his use of intermittent leave. The case involved a married couple who worked for the same employer. Both were certified and approved for intermittent FMLA leave, but for different serious health conditions. His medical condition was anxiety disorder, hers, irritable bowel syndrome. Though different, both conditions involved the need for unplanned absences. The employer became suspicious when the couples’ use of leave began to exceed the expectations certified by their healthcare providers, and a pattern of overlap became apparent in when the two used their supposedly unplanned, intermittent leave.  The employer assembled evidence that over the past year, the couple had used FMLA on 21 common days and on 27 more occasions where their partial day absences overlapped. Deeming this sufficient to confirm its suspicions the two were often falsifying their need for leave, it suspended both for 30 days without pay. Curiously, only the husband sued. He claimed the employer could not lawfully discipline him based on mere suspicion he was abusing FMLA leave, especially when it could not prove a specific date where his leave was not legitimately used for his approved serious health condition. The court disagreed.  It held that, as the plaintiff, the employee bore the burden of proof that the employer disciplined him for taking FMLA, or to otherwise interfere with that protected right. In this case the court noted the plaintiff lacked any evidence the employer disciplined him for any reason other than its “honest suspicion” he was dishonest about his need for and use of FMLA leave.  

Employers often tolerate suspected dishonesty or abuse of FMLA leave, especially intermittent leave, based on the mistaken belief that once leave is supported by medical documentation and is approved, little can be done about how leave is used.  Even where circumstances strongly suggest an employee may be abusing FMLA leave, many employers are reluctant to discipline out of fear they will be sued for infringing on a right protected by federal law. This reluctance is somewhat understandable. The FMLA prohibits employers from “interfering with, restraining, or coercing” employees in their use of FMLA leave, or retaliating against them for exercising rights afforded to them under this law. However, this recent decision shows that employers do not always need to tolerate suspected abuses of FMLA or bear the burden of proving their innocence in court. Obviously, this case is not a “green light” to discipline based on speculation that an employee may be misusing intermittent leave. The employer in this case acted pursuant to a provision in its FMLA policy which stated: “[p]roviding any false or misleading information relative to a requested or approved FMLA leave will be cause for disciplinary action, up to and including discharge.” It conducted a thorough investigation to support and confirm its suspicions before disciplining the plaintiff. Finally, it did not discharge the plaintiff but disciplined presumably in line with other analogous instances of dishonesty.

So, what can employers take from this decision to make administering FMLA a little more manageable in 2023 and beyond? Consider the following:

1. If your company’s FMLA policy does not contain a provision warning of the consequences of falsifying information, either in applying for FMLA leave or using it once approved, perhaps amending your FMLA policy is in order.
2. Where circumstances begin to suggest an employee’s use of FMLA looks suspicious, don’t be afraid to investigate. DOL regulations address the right of employers to inquire when an employee’s use of intermittent leave exceeds the expectations noted in the medical certification or is being used at times that do not match the serious health condition (e.g., where leave frequently brackets weekends or holidays).
3. Investigate and gather enough objective evidence to support an honest belief that FMLA leave is being abused before taking any disciplinary action. Note that the employer in this case did not endeavor to place the couple under surveillance, or otherwise parse through their many instances of using intermittent FMLA. It could not prove which leaves were legitimate and which were not. It could only support its “honest belief” that the sheer number of overlapping uses of leave, taken for two different medical conditions, demonstrated the couples’ abuse of FMLA leave.
4. Employers should ensure that any discipline taken is commensurate with the infraction, just as should be done with any discipline. For instance, many employers maintain policies about dishonesty and may even have discharged an employee for egregious dishonesty over a significant issue, such as submitting false expense reimbursements. But before discharging an employee over claiming a need for FMLA leave on false pretenses, compare the infraction to other analogous instances of dishonesty, such as calling off sick to go golfing. This may be why the employer in this case suspended the employee for 30 days without pay, rather than terminating.

• Don’t be afraid to do something about suspected abuses just because federal law is involved. Some situations may well call for advice from a lawyer knowledgeable about the many nuances of the FMLA and related workplace laws, but it may be well be worth it. As many employers and HR professionals can attest, lax administration of FMLA often leads to the spread of more and more abuses among others in the workforce. With many states adopting paid leave laws, preventing abuse of such leaves becomes more important than ever. Conversely, investigating and disciplining those who abuse leave sends a strong message to others that dishonesty won’t be tolerated, not even where FMLA is involved.      

The case is Juday v. FCA US LLC, Case No. 21-1414 (7^th Cir. 1/12/2023).
Attorney James Sherman is the author of this article. If you have any questions about the article or FMLA leave, he can be reached at: 952-746-1700 or jasherman@wesselssherman.com.