Blanket policies to the contrary may need consideration Eric had been successfully working for the company for many years when he scheduled needed foot surgery. He expected to be out for four to six weeks. The employer responded regarding the FMLA, and subsequently designated the leave as FMLA leave. Eric ended up requesting an additional week of leave. Eric was healing nicely, and a couple weeks before his leave was to expire, he took his annual vacation to a beach in Mexico with his family, despite his limitations. Eric returned to work and began discussing an upcoming planned knee surgery. In response, Sara, the company HR director and another HR manager had an email conversation that included “is he serious?” and “OMG.” That same day, they learned that Eric had gone on vacation while on FMLA leave. An investigation was launched regarding the propriety of Eric’s leave, as Sara did not think an employee “who’s seriously ill or disabled would be able to be on a vacation.” During the investigation, Sara obtained videos depicting Eric walking, driving, and lifting luggage while on leave. She believed these actions were inconsistent with Eric’s medical condition for which he took FMLA leave. Eric was terminated, and he sued. Eric argued that he was terminated in retaliation for taking FMLA leave, and his intention to take more in the future for knee surgery. The employer argued that Eric’s termination was due to his misrepresentation that he was unable to work during the time he was on vacation. The jury found in favor of Eric, indicating that he employer (or the jury) could not penalize someone for going on vacation during FMLA leave. While an employer may validly consider an employee’s conduct on vacation — or anywhere for that matter — that is inconsistent with his claimed reasons for leave, then the employer has reasonable information to evaluate whether leave was properly or improperly used. The fact that Eric chose to spend some of his recovery in a warm climate did not matter. An employee recovering from a leg injury may sit with his leg raised on a beach while fully complying with FMLA requirements, but may not climb Machu Picchu without abusing FMLA leave. The reasons for leave and the employee’s activities need to be considered, including the timeline for recovery. Eric’s abilities had improved to where he could walk, drive, and lift luggage. During the case, photos of Eric’s trip were presented depicted him engaging in suspicious activities while on vacation, but the employer did not have access to those photos when it terminated him. It did not know what Eric did on vacation. The HR director simply considered all vacations while on FMLA leave impermissible under the law. The employer also tried to argue that it terminated Eric on its honest belief of FMLA misuse, even if that belief was mistaken. The court indicated that in addition to an honest belief, such an action would need to have a reasonable basis, and the employer did not have such basis. The jury awarded punitive damages because it found the company’s conduct outrageous. DaPrato v. Massachusetts Water Resources Authority, MA Supreme Judicial Court, No. 12651, June 5, 2019. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.