FMLA Vacation - $2 Million Jury Award

By Lehr Middlebrooks Vreeland & Thompson, P.C.

August 1, 2019

Employers have the right to act when in good faith they believe that an employee is abusing Family and Medical Leave. The risk an employer faces is when an employer’s lack of knowledge of the Family Medical Leave Act results in a mistaken belief that FML has been abused.

In the case of DaPrato v. Massachusetts Water Resources Authority (Mass. S.Ct. June 5, 2019), an employee took FML and went on vacation during the course of the leave. DaPrato provided medical substantiation of the need to be out of work for four to six weeks due to surgery on his foot. The certification indicated that DaPrato should be able to begin to apply weight to his injured foot at approximately 4 weeks after the surgery. Because the employer required that vacation time must be used concurrently with FML, DaPrato did not want to exhaust his vacation time. Thus, he had every incentive to try to return to work. DaPrato attempted to return to work after just a few weeks by using crutches to refrain from putting weight on his foot.

The employer would not let DaPrato return to work until he provided medical substantiation that he could perform his essential job functions, with or without an accommodation. This was certainly within the employer’s rights. However, the problem was that DaPrato could not obtain a medical appointment for about a month, and he obtained FMLA extensions for that reason. Therefore, during that month-long period while out on FML, DaPrato took a planned two-week vacation to Mexico. DaPrato returned from vacation and asked the HR Director about salary continuation benefits for an upcoming FML-covered knee surgery. The HR director forwarded DaPrato’s email to the HR manager, stating, “Is he serious?” to which the HR manager replied with “OMG.”

That same day, the company first learned that DaPrato was on vacation during the last two weeks of FML, and, after an investigation where they obtained some video of him standing and walking when attempting to return to work, but where HR withheld the FMLA certification forms (which indicated that DaPrato would be able to gradually begin weight-bearing activities, but would be restricted in driving), executives terminated his employment because the company believed the vacation was an abuse of FML. DaPrato sued, claiming that his termination was in retaliation for using rights under the FMLA. At trial, the company produced photographs showing that DaPrato had no problem standing, as he was on a fishing boat, proudly displaying a large fish he had caught. However, the company did not become aware of these pictures until after it terminated DaPrato. At the time of termination, it knew only that DaPrato had gone on vacation. As far as the reason for terminating DaPrato, the HR director testified at trial that, “I wouldn’t think somebody who is seriously ill or disabled would be able to be on vacation.” This mistaken assumption contributed to an overall jury award in excess of $2 million.

There are some key lessons learned for employers to deal with FMLA (or other leave) abuse:

1. An individual on FML is not per se precluded from doing other things, such as taking a vacation. Rather, the issue of abuse is whether there is evidence that what the employee did on vacation was inconsistent with the reasons for the employee’s absence. In this case, the Court stated that, “An employee recovering from a leg injury may sit with his or her leg brace on the seashore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process.”

2. We have said so often that e-mail may mean “electronic mail,” but when it comes to HR-related matters, it is “evidence mail.” The e-mail exchange between the HR director and manager was used as evidence to suggest to the jury a retaliatory motive (DaPrato’s past and upcoming use of FMLA) as a reason for his termination.

3. Retaliation includes not only the current use of FMLA, but where an individual expresses the intent to use FMLA in the future. In this case, the retaliation was considered two-fold: one for DaPrato taking a vacation and two for DaPrato stating that he would need additional FML in the future.

4. We have also seen situations where an employee retains a second job while on FML and continues to work at that second job. That is not necessarily FML abuse. The issue for the second job is the same as vacation: if there is no uniformly-applied prohibition against moonlighting (or other similar policy), is the work consistent or not with the reason for the individual’s absence.