Under the federal Family and Medical Leave Act (FMLA) eligible employees have the right to take up to 12 weeks of leave per year. The FMLA prohibits an employer from restraining, denying or interfering with the exercise of any right given under the Act. However, employers can defeat FMLA interference claims if they show that an employee did not take leave for a purpose authorized by the Act. Recently, two Federal Courts of Appeals have allowed some degree of employee surveillance. They held that if an employee has not been reinstated after his or her leave and subsequently filed an FMLA interference claim, the employer only needs to show that they refused to reinstate the employee based on an honest suspicion that the employee was abusing his or her leave in order to defeat the claim.
In one of these cases, the employer terminated the employee because the employer had an honest suspicion that an employee misused his FMLA leave based on the employee’s previous absenteeism. As a result, the employer hired a private investigator for a day when the employee requested to take FMLA leave to care for his mother. The investigator’s video showed that the employee did not even leave the house on that day. Upon the request for the employee to produce supportive documentation from his mother’s nursing home, the records did not match the employer’s internal paperwork. The court ruled that the employer’s decision to terminate the employee did not interfere with the employee’s right to reinstatement and thus, defeated the FMLA interference claim.
In a second case, the employer had an honest belief that an employee committed disability fraud in taking FMLA leave. The employee was given disability leave after he reported severe pain and inability to stand for over 30 minutes. However, several days later, he was seen by his coworkers at an Oktoberfest standing for over 90 minutes without any signs that his movements caused him pain. The court ruled that the employer had acted within its rights by terminating the employee. It is important to note that the decisive question for the court’s ruling was whether his employer reasonably believed that the employee had committed fraud, and not whether he actually committed it.