FMLA Is Not A “Get Out Of Jail Free” Card!

By Fiona W. Ong - Shawe Rosenthal LLP

May 4, 2017

I know that many employers feel hamstrung by the Family and Medical Leave Act’s statutory protections for employees. They can’t do much about the significant negative effects on business operations because of an employee’s unscheduled intermittent FMLA leave, for example. And FMLA abuse is sometimes (if not often) suspected but hard to prove. Many employees seem to view FMLA as a “get out of jail free” card that insulates them from discipline for bad behavior that is related in any way to FMLA – and a literal example of this can be found in the recent case of Capps v. Mondelez Global LLC.

The employee had been approved for intermittent leave for a condition that caused arthritis and flareups of severe pain in his pelvis, hips and thighs. In his FMLA paperwork, his doctor certified that the employee required complete bedrest during flareups. On February 14, 2013, the employee called out because of a flareup of leg pain. That evening, however, (despite the fact that he was supposed to be on complete bedrest), he drove to a nearby pub for dinner because his wife was out of the country and he didn’t know how to cook. (Um, even my crazy teenage son knows how to stick a hotdog in the microwave…) While at the pub with his pals, the employee had three beers and three shots of alcohol. (Because, hey! The wife’s away!) He then got into his car and attempted to drive home.

Unfortunately for the employee (but fortunately for the public at large), he was pulled over and arrested for DUI, with a blood alcohol level exceeding four times the legal limit! He was taken to jail. After his release early the next morning, he went home to sleep. Later that day, he woke and called out of work because of “leg pain.” (I’m sure he was also experiencing some significant head pain from his undoubted hangover…) He was granted FMLA leave for both February 14 and 15.

Approximately 6 months later, the employee pled guilty to DUI and served three days in jail. He did not report this to his employer. In early 2014, an article about his arrest and conviction was put into the Human Resources manager’s company mailbox. This caused the HR manager to investigate the employee’s use of leave – and the company discovered that the employee had called out on FMLA not only on the day of his arrest and the following day, but also on two other court dates. The employee provided documentation to support his use of leave on those dates, but the employer found the documentation to be questionable (undated letters from the doctor with odd references to court dates and waiver of rights). The employee was terminated for fraudulent use of FMLA. And he sued.

The federal trial court threw out the employee’s lawsuit claiming violation of his FMLA rights. The court noted that the employee had not been denied FMLA leave and, further, that the employer had an “honest belief” that the employee misused FMLA leave. On appeal (and, frankly, I’m a little surprised that the employee would have the audacity to appeal under the factual circumstances described above), the U.S. Court of Appeals for the Sixth Circuit affirmed the trial court’s grant of summary judgment for the employer. The Sixth Circuit agreed that the employer’s “honest belief” in the employee’s FMLA abuse was a legitimate reason for the termination. This is true, even if the employer is mistaken in its belief (although in this case, it doesn’t really appear that there was any mistake…)

For employers, this case emphasizes that employees can still be held accountable for misconduct, even if that misconduct occurs in the context of FMLA leave. And FMLA is not a “get out of jail free” card!

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