Many employers have encountered a similar situation and intuitively, the decision appears to be an easy one. You have an employee who has been approved for FMLA, then later you discover they were vacationing in Mexico. You even have photographs of them fishing, boating, and holding up a large fish caught during the trip. You conduct an investigation and determine that they misrepresented their medical condition. You then separate them from employment. Open and shut case, right? Not so fast.
A Massachusetts court recently upheld a jury verdict that totaled $1.3 million against an employer who separated an employee under those very circumstances. In DaPrato v. Massachusetts Water Resources Authority, an employee on an approved FMLA leave took the final two weeks of paid medical leave as a vacation in Mexico while he recovered from foot surgery. Naturally, when the employer discovered this, they fired him. He sued and the jury found the employer liable for retaliation under the FMLA. How could the jury have found in the employee’s favor even after the employer introduced photos showing the employee fishing, boating, and celebrating the catching of a rather large fish? It’s a cautionary fish tale for all employers who automatically assume that an employee who goes on vacation during an approved leave has engaged in FMLA abuse.
Richard DaPrato, an information technology manager for the Massachusetts Water Resources Authority (MWRA), requested and was approved to take FMLA leave in order to have surgery on a nerve tumor in his foot. DaPrato notified his employer that his recovery time would be three to four weeks, that he would not be able to drive and that he would be wearing a boot on his foot after his surgery. He also notified his supervisor that he would be going on vacation to Mexico during the time he was on leave, as he took a trip to Mexico every year. DaPrato had informed his supervisor about the upcoming trip on several occasions.
Upon finding out that DaPrato had gone on vacation to Mexico while on FMLA leave, the Director of HR immediately began an investigation into the propriety of the employee’s leave because she did not believe an employee “who was seriously ill or disabled would be able to be on a vacation.” As a result of the investigation, the HR Director obtained video recordings of the employee walking, driving, and lifting luggage out of his car while on FMLA. The Director believed these actions were inconsistent with the medical conditions for which the employee had been granted FMLA leave. The MWRA terminated DaPrato for misrepresentation about his inability to work and failure to be truthful during the investigation.
What Did The Employer Miss?
How did the employer lose what appears to be a slam-dunk case of FMLA abuse? First, the MWRA made a fatal assumption at the outset of the investigation. The Director of HR automatically assumed that an employee who is on a medical leave of absence shouldn’t be on vacation and that it was inconsistent behavior for someone on FMLA. However, the court held that an employee going on vacation while on FMLA leave cannot form the sole basis for an adverse employment action. Further, the court stated that an employee on an approved leave can recover in either a warm climate or in cold New England weather. “An employee recovering from a leg injury may sit with his or her leg raised by the seashore while fully complying with FMLA leave requirements.”
This is not to say that an employee can go on a mountain climbing adventure while on FMLA leave for a serious health condition. That type of activity would likely be impermissible. However, an employer must carefully consider the reasons for the medical leave and most importantly, the known activities the employee engaged in during the vacation. Including the timeline for rehabilitation and recovery in order to determine if the employee misrepresented their medical condition and engaged in FMLA abuse.
In this case, a fishing trip to Mexico while on FMLA may raise legitimate concerns but as established during the trial, the employer did not have the incriminating photographs at the time of the termination decision. Furthermore, the MWRA did not know exactly what activities the employee participated in while on vacation, only that he had gone to Mexico. In addition, the HR Director’s blanket statement that all vacations taken while on FMLA leave were impermissible, was incorrect as a matter of law.
What Should the Employer Have Done In this Case?
The court’s reasoning suggests that the employer would likely have prevailed if DaPrato had been photographed mountain climbing as opposed to engaging in the limited activities consistent with his medical certification. Furthermore, the HR Director’s assumptions at the outset of the investigation were incorrect and demonstrated that a less than thorough investigation had been conducted before a decision was made. These types of investigations are perfectly allowable, however, they must be thorough and the employer must be sure they’ve made no assumptions or taken any actions before all the facts are known about what activities the employee actually engaged in while on leave and whether they were inconsistent with the limitations specified in the medical certification.