Don’t think all vacationing while on FMLA leave is unacceptable Employee Rick requested about seven weeks of leave for foot surgery, the last few weeks being unable to drive due to wearing a boot. He would, however, be able to transition to putting weight on his foot after four weeks. During the last two weeks of the leave, Rick went on vacation to Mexico, a trip he took every year. The trip was arranged well in advance, and Rick had informed his supervisor of it. While on this vacation, Rick limited his activities due to his recovery Rick returned to work and emailed his HR department about another upcoming surgery he had planned. This email was forwarded to the HR manager with the message “is he serious,” to which the manager responded “OMG.” That same day, HR learned about Rick’s Mexico vacation, and an investigation was launched. HR believed that an employee who’s seriously ill or disabled would not be able to be on a vacation. The HR director obtained evidence of Rick walking, driving, and lifting luggage out of his car while on the vacation, believing these actions to be inconsistent with his need for the FMLA leave. In discussing the situation, Rick indicated that his conduct was consistent with his limitations, as described in the FMLA certification. After talking to senior management (but not sharing the certification), the decision was made to terminate Rick. Rick sued, arguing that his termination was in retaliation for taking FMLA leave, and indicating that he planned on taking more FMLA leave in the future. The employer argued that the termination was due to its honest belief that Rick took FMLA leave on a fraudulent basis. The court found the employer liable for FMLA retaliation, indicating that time spent recuperating in a particular location or in a particular manner is not an independent reason for termination. The HR department’s response to Rick’s upcoming surgery did not help. An employee may not be penalized for going on vacation during FMLA leave, as long as his actions do not contradict his restrictions. The court indicated that an employee can recover in a warm climate as well as in a cold one without abusing FMLA leave. If, however, the FMLA certification indicates a current walking limitation and the employee is seen climbing Machu Picchu, that could be FMLA fraud. For what the court felt were outrageous actions, the employer was assessed $19,777 in back pay, $188,666 in front pay, $200,000 in damages for emotional distress, $715,385 in punitive damages, and $208,443 in liquidated damages for total of $1,332,271. Therefore, employers must give careful consideration of the reasons for medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, to determine whether FMLA leave has been abused. All vacations while on FMLA leave are not impermissible. DaPrato v. Massachusetts Water Resources Authority, MA Supreme Court, SJC-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.