At our recent Safeguarding Employers in 2013 seminar, we provided employers advice regarding how to address fraudulent use of leave under the Family and Medical Leave Act (FMLA).  On many occasions employers are reasonably suspicious that an employee is taking purported FMLA leave for other purposes, such as vacation, attending to errands, or simply taking time away from work.  While the FMLA permits employers to take certain action in response, employers should do so carefully.
The FMLA regulations provide that “[a]n employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.”  29 CFR 825.216(d).  Accordingly, an employer may discipline or discharge an employee who fraudulently takes FMLA for another purpose.  In support of this principle, courts have developed an “honest belief” rule.
The “honest belief” rule provides that “so long as the employer honestly believed in the proffered reason given for its employment action, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial or baseless.”  Jaszczyszyn v. Advantage Health Physician Network, 2102 WL 5416616 (6th Cir. 2012).  This rule may not, however, protect an employer which takes adverse action against an employee without proper investigation and foundation.
Employers should not rely on mere speculation and stereotyping when concluding that an employee is not really affected by a serious health condition.  Caution is particularly warranted when an employer is considering the leave of an employee with a mental serious health condition.  If appropriate, employers should consider interactive follow up before taking adverse action, such as seeking a complete medical certification, having a health care provider clarify a medical certification, obtaining a recertification of the employee’s condition, or getting a second opinion from another health care provider.
Takeaway:  Employers do not have to tolerate FMLA leave abuse by employees.  However, employers should take steps to obtain objective and particularized facts before acting on suspicions of improper use of leave.  Failure to do so could result in claims of FMLA interference or retaliation.