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Stephanie Wilkins


Stephanie Wilkins is a writer, attorney, and photographer living in New York City. She earned her B.A. at the University of Notre Dame and her J.D. at New York University School of Law. Stephanie has been a commercial litigator at some of the largest law firms in New York.

As any successful business knows, what is good for employees is not always good for employers.

Often viewed as a godsend by employees with sick family members or serious health issues, the Family Medical Leave Act (FMLA) is unfortunately the source of frequent headaches for employers. This is especially the case when it comes to intermittent FMLA leave, that gray area of the law that is difficult to police and ripe for abuse. Suspected fraud is the biggest FMLA-related concern for most companies.

Employers must walk a fine line when they suspect employees of FMLA fraud. Proper investigation is crucial to preventing a legitimate fireable offense from becoming a nightmare retaliation lawsuit.

FMLA and Intermittent Leave

The FMLA allows qualified employees to take job-protected, unpaid leave to handle certain health issues or family responsibilities. The law was intended to help employees deal with the increasingly competing demands of work responsibilities and personal life.

The FMLA specifically allows for the possibility that, under certain circumstances, employees may take leave on an intermittent or reduced schedule basis, rather than all at once. Typically this arises in situations where an employee has to deal with an ill family member, or when the employee is coping with his or her own serious health condition. Intermittent leave can be taken in increments as small as fractions of hours, provided an employer’s leave protocols are met.

Given the sporadic nature of intermittent leave, it is much harder for employers to monitor, making it an easy target for fraud. Nonetheless, intermittent leave is just as protected as other, more predictable forms of FMLA leave. The statute has express provisions making it unlawful for an employer to punish employees for taking or attempting to take lawful leave under the FMLA.

This leaves employers with one crucial question: What can be done when you suspect an employee of committing FMLA fraud?

Fireable Offenses vs. Retaliation

There is no question that committing fraud in relation to taking FMLA leave is a legal ground for termination. Proving fraud, on the other hand, can be an uphill battle for employers.

The standard for employers to remember when suspecting fraud is that of honest suspicion. While this standard is subjective and can be open to broad interpretation, being able to show an honest suspicion that an employee is abusing or fraudulently using FMLA leave is the best defense against a claim that an employer is interfering with protected FMLA leave or acting in retaliation for using that leave.

It’s important to note that having an honest suspicion of fraud does not necessarily justify an immediate termination. Rather, it allows an employer to investigate the propriety of an employee’s leave in order to gather evidence to support disciplinary action, if such action is called for. The key to avoiding a time-consuming and expensive lawsuit is to have strong proof of impropriety.

Firing an employee who is on FMLA leave is possible – the statute does not grant employees protected status against normal workplace actions. Nonetheless, the fear of a retaliation lawsuit is justified. Since the enactment of the FMLA, employers’ discretion to terminate employees on leave is very narrow. An employer must show that an employee would have been terminated for legitimate reasons unrelated to FMLA leave status, including:

  • Poor performance;
  • Insubordination or other prohibited conduct;
  • Violation of company policies;
  • A reduction in workforce.

Despite these legitimate grounds for termination, an employer who terminates an employee who is on FMLA leave, whether intermittent or otherwise, always runs the risk of a retaliation lawsuit. The bad news for employers is that the burden of proof is on them to show that the employee was terminated for legitimate reasons. In other words, the company must show that the terminated or disciplined employee would have received the same treatment regardless of whether or not he or she was on leave.

In order to state a viable claim for FMLA retaliation, an employee must show that:

  1. He or she engaged in conduct permitted under the FMLA;
  2. He or she suffered an adverse employment action; and
  3. The prior caused the latter.

If an employee makes a basic showing of a causal connection, the burden shifts to the employer to show a lawful reason for the action, specifically one that is unrelated to the employee’s FMLA leave.

Motive is key. Put simply, an employer cannot discipline or terminate an employee for invoking his or her FMLA rights.

While this may sound simple, proving motive is a more difficult task. If you are even remotely contemplating taking action against an employee who has taken qualified FMLA leave, maintaining documentation is crucial. This includes records of the employee’s leave usage, employee performance files, and evidence of any improper conduct, among other things. If you can’t demonstrate to a court that the termination was for a legitimate reason, the odds are not in your favor.

The Current Legal Climate

Given the burden on employers to prove non-retaliatory action, it should come as no surprise that courts in FMLA retaliation cases tend to be plaintiff-friendly. A recent decision out of the United States District Court for the District of Maine reaffirms that defendants face a formidable challenge in seeking to dismiss retaliation claims.

In Brady v. Bath Iron Works Corp., David Brady, a 26-year-tenure carpenter, alleged that his employer, Bath Iron Works, improperly terminated him in retaliation for using his approved intermittent FMLA leave. The case arose when Bath fired Brady after discovering that he used his leave time to get a drink with a coworker at a local bar.

Brady was certified for intermittent FMLA leave in 2015 to deal with chronic severe depression and anxiety. On June 26, 2015, a few days after his certification was approved, Brady determined four hours into his shift that he needed to use his leave and, after getting approval from his supervisors, left work for the rest of the day. While clocking out, he ran into a coworker and the two decided to get lunch.

Upon learning that Brady went to a local restaurant, Bath’s labor relations department sent investigators to the restaurant to observe Brady. While he reportedly didn’t eat due to his stress and anxiety, Brady did have a beer. Bath’s internal physician then contacted Brady’s primary care physician to seek clarification on Brady’s basis for intermittent leave and the propriety of using that leave to spend time at a bar.

The next day, a Saturday, Brady reported to work, only to find that his badge had been deactivated and he was denied access. On the following Monday, Bath met with Brady to discuss his use of intermittent leave the preceding Friday, but they did not ask him about his condition or his need to use leave. Bath suspended Brady pending investigation of possible FMLA fraud.

It was not until the next day, on June 30, that Bath received a response from Brady’s doctor regarding how Brady’s use of leave was related to his stress and anxiety. Without speaking further to Brady or his physician, Bath terminated Brady on July 8, 2015, on the ground that his use of leave was inconsistent with his approval for FMLA leave.

Brady filed a complaint against his employer for FMLA retaliation on January 5, 2016, alleging that he was fired for using his approved FMLA leave. In response, Bath filed a motion to dismiss, contended that Brady did not engage in protected conduct in taking leave and arguing that the FMLA does not permit employees to use their approved leave to go to a local bar.

While Bath’s argument may seem logical to many employers, the Court did not agree. On May 25, 2016, the Court denied the motion to dismiss, finding that Brady had successfully alleged a prima facie retaliation claim.

Drawing all inferences in Brady’s favor, the ruling held that he plausibly alleged that he had been approved for intermittent FMLA leave for anxiety and depression, that he properly used that leave to exit the workplace and socialize with a coworker offsite, and that he was fired as a result. Central to showing a causal connection, in the Court’s mind, were Brady’s allegations that he was barred from returning to work before Bath heard back from Brady’s physician about whether his use of leave was consistent with his condition, as well as Bath’s failure to address that issue prior to his termination.

While the ultimate outcome of Brady’s retaliation claim remains to be seen, his claims have been allowed to proceed. This is not the first time a court has declined to dismiss a retaliation claim even in the face of conduct that may seem egregious to employers. For example, in Gurne v. Michigan Bell, AT&T terminated a call center employee after she was seen at a coworker’s birthday party during work hours after invoking her FMLA leave. Despite the employer’s claim that it had an “honest belief” of misconduct and had investigated the use of leave, the Court held that AT&T’s actions were not sufficient to avoid a retaliation claim. The defendant’s motion to dismiss was denied and the employee’s claims were allowed to go forward.

The Takeaway

In today’s current litigious climate, the harsh reality is that employers must tread lightly when terminating employees. This is particularly true in cases of employees who are on approved FMLA leave.

What may seem like an obvious ground for termination to you may not be as obvious to a court. As the above cases show, actions as seemingly egregious as using FMLA leave to get a beer or attend a birthday party are not clear-cut examples of FMLA fraud. Terminating an FMLA leave employee opens you up to a possible retaliation claim, no matter how reasonably you may think you were acting.

In short, your “honest belief” that you’re firing an employee for legitimate FMLA fraud will likely not be enough to avoid a retaliation suit. At most, that belief should be used as the basis for thorough investigation of improprieties.

The burden is on you to show that your actions were justified. It’s best to proceed with caution – taking the time to investigate and document your decision today might save you from months of litigation down the road.

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