Key to remember: Employers have options when they believe an employee is abusing FMLA leave, and one of those options is conducting surveillance on an employee suspected of such abuse.
Applies to: All public employers and private employers with 50 or more employees
Impact to customers: This case highlights one employer’s successful battle against an employee’s FMLA leave abuse.
Syndi had taken FMLA leave from her mostly sedentary job in the past with no issues. Her latest request was for foot surgery, which was approved. She was also provided short-term disability benefits for the absence. The FMLA certification she provided indicated that Syndi was not to bear weight on her foot, and no driving for 10 weeks after the surgery. The doctor reiterated these restrictions through ongoing reports every few weeks.
While Syndi was on leave, Kyle, a company manager was told by Peter, another employee, that Peter saw Syndi walking around at a pool party. Peter also stated that he heard from countless coworkers that Syndi was taking advantage of the company’s short-term disability and was acting in a manner inconsistent with a need for disability leave.
Given this information, Kyle and Raul, Syndi’s supervisor, decided to hire an investigative agency to surveil Syndi's activities to ensure that Syndi abided by her doctor’s restrictions on and off-duty.
The video surveillance captured Syndi repeatedly climbing into her vehicle and driving, walking around a backyard and down stairs, and lifting a small child off the ground, all despite being restricted from putting weight on her foot. During her leave, however, Syndi told Raul that “all she does is lay around…in pain” and that she was unable to “come into work and sit down.” She also said she could barely walk.
Syndi eventually returned to work, but on a reduced schedule, claiming to continue to have problems with her foot. The investigator, however, reported that Syndi was walking without any apparent physical issues. While still receiving partial disability payments and working reduced shifts because the eight-hour shifts were "killing [her]," Syndi was recorded on surveillance walking through a store parking lot without crutches, a boot, or a limp. She was fired for providing inaccurate information.
Syndi sued, arguing that she was fired in retaliation for taking FMLA leave and that the surveillance was an adverse employment action. The employer argued that Syndi was not fired for taking FMLA leave.
In siding with the employer, the court pointed out that Syndi had taken FMLA leave without issue in the past and was never denied an FMLA leave request. In the latest situation, the employer had legitimate, non-discriminatory, non-pretextual reasons for her termination — her flagrant exploitation of the short-term disability policy and her repeated instances of dishonesty with respect to the severity of her injury in violation of the company’s code of conduct.
Takeaway: Don’t jump to conclusions and presume wrongdoing when considering surveillance. Investigate first to determine if there are grounds for moving to such action. This employer had sufficient knowledge about Syndi’s physical restrictions from the doctor. With this information and the video, the company had good reason to believe Syndi was misrepresenting her condition and violating her doctor’s orders. Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.
Snyder v. E.I Dupont de Nemours, Inc. & Co., District of Delaware, No. 18-1266, February 5, 2021
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.