Honest Belief of FMLA Abuse Is Enough to Fire Someone

​Abuse of intermittent Family and Medical Leave Act (FMLA) time off is frustratingly common, but employers need not tolerate it. If they have an honest belief or suspicion of abuse, that's enough to take action against an employee, said Matt Morris, vice president of FMLASource, a ComPsych Corp. program in Chicago, at the 2018 Society for Human Resource Management Employment Law & Legislative Conference on March 13.

The honest-belief defense goes back 20 years, added Dana Connell, an attorney with Littler in Chicago.

Connell said signs of abuse include:

• An employee has frequent Monday and Friday absences.
  
• An employee's request to take vacation is denied, then he or she takes FMLA time off.
  
• A co-worker anonymously or directly complains to the company about a worker's abuse of FMLA leave.
  

One of the advantages of the honest-belief doctrine is that it circumvents often ineffective and expensive FMLA mechanisms to challenge leave, such as recertifications and second or third opinions, Morris said.

Case Law

However, he cautioned that some appeals courts, such as the 9th U.S. Circuit Court of Appeals, have been reluctant to adopt the honest-belief doctrine.  

But the 6th and 7th Circuits have adopted it, he added. In the 6th Circuit, the belief must be "reasonably grounded on particularized facts" known at the time someone is fired.

Application of the defense may depend partly on the facts of a given case.

In one 2017 3rd Circuit case, Capps v. Mondelez Global LLC, an employee with leg pain was arrested for driving under the influence (DUI) on a day that he'd taken off under the FMLA, Connell noted. His wife was out of town, and since the employee didn't know how to cook, he went to a local pub to get something to eat. He also drank three beers and had three shots of alcohol while there. On the way home, he was arrested for DUI with a blood alcohol concentration of four times Pennsylvania's legal limit. The employee was released from jail early the next morning but took FMLA time off that day because of leg pain.

When he returned to work he didn't report his arrest (he wasn't required to), but an HR manager learned about it from a newspaper article. Upon doing further research, the HR manager discovered that the employee's arrest date and court dates coincided with days on which the worker took FMLA leave.

It looked fishy to the employer, who believed he'd misused the FMLA. The 3rd Circuit accepted this honest belief as defeating the employee's FMLA retaliation claim. It noted that the 10th Circuit held that an employer's honest belief an employee has committed fraud, even if possibly mistaken, defeats an FMLA retaliation claim.

[SHRM members-only toolkit: Managing Family and Medical Leave]

But the honest-belief doctrine may not work if the employer keeps changing its reasons for firing someone. In an 11th Circuit decision from 2017, Jones v. Gulf Coast Health Care of Del. LLC, an employer's shifting reasons for termination eroded the honest-belief defense, even when the employee, out recovering from shoulder surgery, posted pictures on Facebook of two visits to Busch Gardens Tampa and a three-day vacation in St. Martin.

Practical Tips

Morris gave a few practical tips for employing the honest-belief doctrine:

• Know where the employee works. The circuit court where the employee works is "extraordinarily important," since application of the standard varies widely among circuits.
  
• Conduct an investigation, regardless of what the employer has heard or seen. Skipping an investigation can result in the employer losing a case.
  
• Talk with the employee about the suspicions. Ask the employee what happened and document the discussion, including whether the employee admits to some FMLA misuse. Even if the employee says the FMLA wasn't abused, the employer still may have an honest belief that it was. But the worker may persuade HR that the suspicions were mistaken. 
  

Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.