Company had ‘honest suspicion’ couple’s overlapping FMLA leave indicated abuse, court finds

Dive Brief:

An automotive manufacturer properly suspended an employee based on its “honest suspicion” he abused leave under the Family and Medical Leave Act, the 7th U.S. Circuit Court of Appeals held Jan. 12 (Juday v. FCA US LLC, No. 21-1414 (7th Cir. Jan. 12, 2023)). The company discovered the employee and his wife, also an employee, took overlapping FMLA leave more than 20 times in one year.
The couple work at the company’s transmission plant in Kokomo, Indiana, according to court records. In 2017, they took intermittent FMLA leave for periodic flare-ups of their conditions: He had back pain, anxiety and depression; she suffered from irritable bowel syndrome. During a routine review, the company’s outside FMLA administrator noticed the couple’s FMLA leave frequently overlapped. The company said it then determined that more than half of the husband’s absences were on the same day or for the same part-day time periods as his wife’s, but that this was at odds with his explanation that he only needed FMLA leave at the same time as his wife about 20% to 30% of the time, when her flare-ups triggered his anxiety. Neither spouse could explain why their requests overlapped as frequently as they did, court records indicate. Both were temporarily suspended. He sued the company for violating his FMLA rights.
A federal district court granted summary judgment to the company, and the 7th Circuit upheld the ruling. The undisputed evidence indicated that “FCA suspended [the plaintiff] because it believed he abused his FMLA leave by using FMLA leave for non-FMLA purposes, thereby providing false or misleading information to FCA,” the district court explained. “Contrary to [the plaintiff’s] allegations, the evidence indicates [the plaintiff] was suspended for FMLA abuse, not FMLA use,” it said.

Dive Insight:

The FMLA allows eligible employees to take up to 12 weeks in a 12-month period of unpaid, job-protected leave for specified family and medical reasons, a U.S. Department of Labor FMLA overview explains. But these entitlements apply only if an employee uses FMLA leave “for the intended purpose,” the 7th Circuit emphasized.

In a claim of this type, an employer doesn’t have to “conclusively prove” the employee abused FMLA leave by using it for a nonintended purpose; rather an ‘honest suspicion’ will do,” the 7th Circuit explained. Nothing in the record called into question the company’s honest suspicion that the husband abused his FMLA leave, it said. After reviewing the couple’s interview transcripts and attendance record, the company’s internal FMLA administrator concluded that the husband had given false or misleading information regarding his FMLA leave, violating its employee standard of conduct, the court noted.

Other employers have established honest suspicion by relying on surveillance to show a worker didn’t use FMLA leave for its intended purpose. In a case involving the DuPont chemical company, co-workers tipped it off that an employee had been seen walking around at a party while she was on FMLA leave recovering from foot surgery. The company hired an investigator to surveil her to make sure she was following her doctor’s restrictions to stay off her foot. DuPont fired her after video surveillance repeatedly captured her engaged in activities that violated her doctor’s instructions, such as by walking, driving, mowing her lawn and otherwise moving around without crutches, a boot or a limp.

A federal district court in Delaware allowed DuPont’s use of video surveillance and upheld the employee’s termination. After reviewing the case anew, the 3rd Circuit affirmed. On appeal, the employee argued that DuPont couldn’t honestly believe she abused her leave because a doctor’s note said she could do physical activity “as tolerated.” But the employee herself reported not being able to drive or put weight on her foot, and medical documentation corroborated this, the 3rd Circuit said.

Here, the 7th Circuit clarified that nothing requires employers to conduct surveillance before disciplining an employee. That surveillance evidence is used in some cases to show an employer honestly suspected FMLA abuse doesn’t mean it’s necessary in all cases, the panel said.

For example, a federal district court in Illinois found that Yelp’s “honest suspicion” of FMLA abuse based on co-worker tips was sufficient to dismiss an employee’s lawsuit alleging FMLA retaliation. Co-workers learned she took a trip to Thailand while on FMLA leave for sciatica and a herniated disc. They reported the trip to management, and she responded by texting a colleague that she wanted to “punch” them. Yelp fired her for dishonesty regarding her leave and for violating its anti-violence policy. An employee is entitled to reinstatement following FMLA leave only if they take the leave for its intended purpose, the court said.

The FMLA marks its 30th anniversary on Feb. 5. Among its primary purposes is to “balance the demands of the workplace with the needs of families,” the statute states.