Dive Brief:

• DuPont didn't retaliate against an employee who took multiple medical leaves under the Family and Medical Leave Act when it surveilled her for suspected FMLA abuse and then fired her after confirming she engaged in activities inconsistent with her leave, the 3rd U.S. Circuit Court of Appeals ruled (Snyder v. DowDuPont, Inc., No. 21-1235 (3rd Cir. May 10, 2022)).
• The plaintiff began working for DuPont in 1997. Her job was considered "mostly" sedentary, according to court documents. Due to migraines and sinus infections, the plaintiff took about 20 medical leaves in the nearly 20 years she worked for DuPont. In 2014, DuPont hired a private investigator to surveil Snyder. DuPont surveilled her on and off for the next two years. In 2016, Snyder took leave following foot surgery and told DuPont's nurse she wasn't supposed to drive or put any weight on her foot. A few months later, she returned to work part time, but after a few days, she complained of foot pain and swelling. Despite these complaints and what she'd told the nurse, Snyder was repeatedly seen driving and walking with ease. DuPont fired her for engaging in activities inconsistent with her reported symptoms, and Snyder sued it for retaliation under the FMLA.
• The district court granted summary judgment to DuPont. After reviewing the case anew, the 3rd Circuit upheld the ruling. It said DuPont provided credible reasons for its actions, so the case came down to whether Snyder could show these reasons were a pretext for retaliation. She couldn't. On appeal, she argued that DuPont couldn't really believe she abused her FMLA leave because a doctor's note said she could do physical activity "as tolerated." But Snyder herself reported that she couldn't drive or put weight on her foot, and other medical documentation corroborated this, the 3rd Circuit said.

Dive Insight:

The FMLA gives eligible employees the right to take up to 12 workweeks in a 12-month period of unpaid job-protected leave for specified family and medical reasons, a U.S. Department of Labor fact sheet states. To be eligible, an employee must work for a covered employer for at least 12 months and have at least 1,250 hours of service during the 12-month period immediately proceeding the leave.

Employees who claim they've been retaliated against for requesting or taking FMLA leave must ultimately prove "pretext" – evidence that a jury could reasonably disbelieve an employer's explanation or that the action was likely motivated by retaliation, the 3rd Circuit explained. Snyder failed to do so, the panel held.

Although retaliation is unlawful, employers "need not abide by abuse," the 3rd Circuit emphasized. One way employers can detect FMLA abuse or fraud is to watch for absences that fall into a pattern, such as absences on Fridays and/or Mondays or before or after a holiday, FisherPhillips attorney Grant Wills pointed out in a 2019 post.

Employers should also investigate and gather objective evidence supporting abuse, the post notes. According to court documents, DuPont suspected Snyder of abuse partly because it noticed a pattern with her: She would exhaust her FMLA leave, return to the job until she worked "the minimum amount of time to get the FMLA clock reset and then immediately go back out," her manager testified. DuPont confirmed its suspicions with witness accounts and recordings of behavior inconsistent with her leave.

But because the FMLA often intersects with the Americans with Disabilities Act (ADA), employers may want to proceed carefully before taking action. For example, employees who exhaust their FMLA leave may be entitled to additional leave as a reasonable accommodation under the ADA. It's an issue the U.S. Equal Employment Opportunity Commission has pursued. In February, the agency announced that a trucking and property management company agreed to pay $65,000 to settle allegations that it violated the ADA by firing two employees who were unable to return to work after exhausting their FMLA leave. One employee had asked for an additional week of leave to accommodate a disability. The other sought an additional three weeks.

The ADA and the FMLA intersect in other ways, as a March 2 lawsuit against Comcast shows. In the lawsuit, a former employee claimed his disabling retina disease and high blood pressure worsened after he took on additional job responsibilities. He alleged that Comcast violated the ADA by giving him poor performance evaluations for the first time after he disclosed his disabilities. When he requested intermittent leave under the FMLA to address the disabilities, Comcast allegedly violated the FMLA and its own policies by requiring him to give 24 hours' advance notice of any sick day or day covered by his intermittent leave, the lawsuit said.