Dive Brief:

• A chemicals company did not violate the Family and Medical Leave Act (FMLA) when it used video surveillance to prove an employee's behavior was inconsistent with her stated need for disability leave, the U.S. District Court for the District of Delaware ruled (Snyder v. EI DuPont de Nemours Inc., No. 18-1266 (D. Del., Feb. 5, 2021)).
• A long-time DuPont employee took FMLA leave to recover from a foot surgery. While on leave, and while receiving short-term disability pay, other DuPont workers reported seeing the technician "walking around at a pool party," despite her doctor's orders that she should not put weight on her foot. After hearing this report, company management hired an investigative agency to surveil the worker to ensure she was following her doctor's restrictions. Initial surveillance captured the technician climbing in and out of her SUV, driving, walking and descending stairs, and lifting a small child — activities that directly violated her doctor's instructions and conflicted with her report that "she could barely walk." Later, when the technician returned to work on light duty and on a limited schedule due to persistent pain, surveillance recorded her "walking through a Wal-Mart parking lot without crutches, a boot, or a limp, getting a manicure and pedicure, and mowing her lawn on a riding tractor for 90 minutes." The company fired her several weeks later. She sued, claiming, among other things, FMLA leave retaliation.
• The court granted DuPont's motion for summary judgment, rejecting several of the technician's arguments. She claimed the company failed to follow its progressive discipline policy. The court noted that the company's discipline policy expressly allowed immediate termination. She also attempted to claim that the company's surveillance of her showed "discriminatory animus." Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave, the court said, relying on an earlier case.

Dive Insight:

This decision gives guidance to employers that wonder if employees abuse their leave, Stacy M. Bunck, an office managing shareholder at Ogletree Deakins, wrote in a blog post.

"It is not uncommon for coworkers to question the legitimacy of an employee's short-term disability leave after witnessing inconsistent behavior. In such a scenario, employers may want to consider whether to implement surveillance and ascertain whether the employee is acting in a manner inconsistent with his or her own physician's orders regarding physical limitations," Bunck suggested.

Employers can investigate suspected FMLA abuse and take disciplinary measures, but experts advise against starting with a "presumption of wrongdoing." In a 2018 case, HR's behavior was snarky and hostile when it suspected an employee was abusing FMLA leave. The case resulted in a $2 million jury verdict.

It's worth noting that FMLA leave and vacations aren't mutually exclusive, experts have said, but there are limits. A California trial court ruled that Union Pacific Railroad was justified in letting go an employee who took FMLA leave and then appeared in a co-worker's Facebook live video of a fishing trip, for example.

Intermittent leave, in particular, can lend itself to abuse, experts say. Chicago's Office of Inspector General concluded, for example, that three workers had abused their right to intermittent leave when they used it to take a cruise together that they had booked nearly a year in advance.