Employers May Use a Private Investigator to Validate an Employee’s Use of FMLA Leave

By Fiona W. Ong - Shawe Rosenthal LLP

April 28, 2022

While there are plenty of employees who legitimately need and appropriately use Family and Medical Leave Act leave, there are some bad apples out there who abuse FMLA leave, typically to cover a day off here and there – and employers are often frustrated with how to deal with them. While the FMLA itself provides some limited recourse (mostly in terms of certifications and recertifications) for employers to question overall patterns of use, it doesn’t really address specific incidents of intermittent leave use. So what can employers do? Well, one option might be to hire a private investigator.

That is what the employer did in VanHook v. The Cooper Health System. In that case, the employee was granted intermittent FMLA leave to care for her son, who had several serious health conditions related to his mental health. The employee took significant and increasing amounts of FMLA leave each year. She also took other  (non-FMLA) unscheduled days off that resulted in an attendance warning. After hearing from multiple co-workers that the employee might not be using FMLA leave appropriately, and realizing that many of her unscheduled FMLA days off were in conjunction with weekends or approved days off, the employer decided to  hire a PI to follow her on three of her FMLA days.

So…. Day 1, the employee reported her (FMLA-approved) son “was not having a good day.” But the PI observed her driving to Dunkin’ Donuts and Walmart, picking up her other (non-FMLA-approved) son from school, and exercising at L.A. Fitness – all without the son who supposedly needed care. Day 2, the employee went to L.A. Fitness, ShopRite, and Target – her (FMLA-approved) son was nowhere in sight. Day 3, the employee said she needed FMLA leave to take her (FMLA-approved) son to doctors’ appointments, but he got on a school bus and she took her other (non-FMLA-approved) son to a doctor’s appointment and then went shopping. Interestingly, when she was confronted with this evidence, she refused to watch the tapes.

It should be a surprise to no one that the employee was terminated for FMLA abuse, as confirmed by the video surveillance tapes. Well, except for the employee, who had the chutzpah to sue the employer for violation of her FMLA rights (among other things).  It should be a surprise to no one that the federal trial court threw out her claims. Well, except for the employee who had the chutzpah to appeal that decision.

With regard to her FMLA claim, the employee did not argue that the employer was mistaken in its honest belief that she had abused FMLA leave. Oh no – her argument was that the employer initiated surveillance without a reasonable suspicion that she had abused FMLA! In other words, she didn’t deny the abuse – she was just upset she got caught! Well, the U.S. Court of Appeals for the Third Circuit treated that argument with the skepticism it deserves, flatly stating “nothing in the FMLA prevents employers from monitoring employees’ activities while on FMLA leave to ensure that they do not abuse their leave.” (And even so, the Court went on to note that the employer did have reasonable suspicion, based on the co-worker reports and her pattern of use …)

So, this case reminds employers that they can hire a private investigator to confirm whether an employee is using FMLA appropriately. And if the employee is caught behaving in a manner that is clearly inconsistent with the stated reason for the FMLA leave, then they can take appropriate disciplinary action – up to and including termination. But be careful about assuming that the behavior is inconsistent – in this case, the employee said she needed to care for a son who was nowhere to be found, so that was pretty clear. If the FMLA leave is for the employee’s own serious health condition, however, that determination may be more complicated. And it is always important to give the employee a chance to explain before firing them!