You be the Judge: Was sharp-eyed supervisor right to report FMLA suspicions?
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You be the Judge: Was sharp-eyed supervisor right to report FMLA suspicions?

“I don’t know if I’m doing the right thing here,” supervisor Bob Parker told HR manager Wendy Orsino. “Maybe it’s nothing. But I’m having some doubts about Wayne Dresser’s FMLA absences, and I thought you should know.”

Wendy leaned forward in her chair. “Of course you’re doing the right thing,” she said. “Employees have FMLA rights, but FMLA leave is expensive for the company, and we like to manage it as closely as we can.”

“That’s reassuring,” Bob said. “So, here’s the deal. Three or four times over the past six months, Wayne has told me in advance that he’s going to be taking FMLA leave for his back problems. It’s true that I’ve told my whole department that I’d like advance notice of any absences — it makes scheduling hard if I find out at the last minute — but my understanding of Wayne’s back trouble is that it flares up unpredictably every so often.”

“So how can he know days ahead of time that he’s going to need leave?” Bob ended by saying.

Intermittent and unforeseeable
“You’re right about the nature of Wayne’s pain,” Wendy said. “I have his FMLA paperwork right here, and he’s certified for intermittent leave when his back starts hurting. His doctor says that’s something that can’t be foreseen — it can happen at any moment.”

“OK,” Bob said. “Anyway, 10 days ago, Wayne sent me an e-mail saying that if I was going to schedule him for the night shift in the partial week before the Thanksgiving holiday, he’d be taking FMLA leave. Here’s a printout of the e-mail.” Bob handed a piece of paper across the desk to Wendy and went on.

“You can see that he says he’s letting me know as a courtesy, but I don’t take it as such,” Bob said. “For me, it’s the last straw. He’s as good as telling me I can’t make him work when he doesn’t want to. And again, how does he know his back is going to hurt on some particular days — days that just happen to suit his holiday planning?”

Signs of abuse
“I’ll have to look into this, but it looks awfully suspicious,” Wendy said. “And when you add in the fact that a lot of Wayne’s intermittent leave just happens to fall on Fridays and Mondays — I checked after you asked for this meeting — we have reason to believe that he may be abusing the FMLA for his convenience. That’s a serious violation of the company’s code of conduct.”

“What are you going to do?” Bob asked.

“We’ll investigate, of course,” Wendy said. “I can’t tell you much more than that. But I appreciate your coming to me.”

The next time Wayne took intermittent FMLA leave, the company had a private investigator follow him and film his physical activities, which a company doctor said were incompatible with a bona fide back injury. Based on that investigation, and Bob’s copy of the e-mail from Wayne, the company first denied him two further FMLA days he’d requested, and then fired him.

Wayne sued, claiming the company illegally retaliated against him for taking FMLA leave to which he was entitled. Did he win?

The decision
No, Wayne didn’t win his lawsuit. The courts threw it out as unworthy of being heard by a jury.

A federal appeals court said the company had an honest and well-supported belief that Wayne was abusing his FMLA leave, which was all it needed to stay within the law.

In coming to this conclusion, the court pointed to the results of the surveillance, the e-mail Wayne sent supervisor Bob giving notice of supposedly unpredictable back pain, and Wayne’s pattern of using FMLA leave on days before and after weekends and holidays.

So in this case, the supervisor did exactly the right thing to protect the company, although he arguably could have done it sooner. Bob knew enough about intermittent FMLA leave to be alerted when Wayne gave notice that implied he knew exactly when his pain was going to strike in the future — a medical improbability to say the least.

Don’t get us wrong: Supervisors shouldn’t try to diagnose medical conditions or judge whether they add up to the serious health condition required for employees to take FMLA leave. And they shouldn’t take action against an employee just because they suspect the person is abusing an FMLA entitlement. But supervisors should let HR or higher management know when something smells fishy.

Cite: Tillman v. Ohio Bell Telephone Co., No. 11-3857, 6th Cir., 10/8/13. Fictionalized for dramatic effect.

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