If you’re going to a major pop star’s concert while on Family and Medical Leave Act, you probably need to check in with your manager.
Presenters during a virtual session Wednesday, “Serious Health Condition or Serious Vacation? The FMLA in a Virtual Workplace,” turned to a 2018 opinion from the 5th U.S. Circuit Court of Appeals to illustrate a situation in which an employee can be terminated for misusing FMLA. The session was part of the Disability Management Employer Coalition’s FMLA/ADA Employer Compliance Conference and focused on proper use of FMLA for remote workers.
“FMLA abuse and fraud can be incredibly frustrating and, with the pandemic and the switch to remote work, it's even more challenging to try to monitor remote employees and keep track of FMLA time,” said Nell Walker, vice president, deputy general counsel and chief compliance officer at insurance provider Reliance Matrix and one of the presenters.
The case, Jackson v. BNSF Railway Co., involved a worker who took leave shortly after being placed on a performance improvement plan and went to a Beyonce concert in the company’s suite while out. The worker was contacted about attending the concert but allegedly refused to communicate with the manager and was fired. The appeals court affirmed the ruling by the U.S. District Court for the Northern District of Texas that the worker was not retaliated against for taking leave but instead terminated for abusing leave. (During the DMEC session, presenters changed the performer to Taylor Swift. Sorry, Bey.)
If faced with a similar situation, the presenters — Walker and Lana Rupprecht, director and product compliance counsel for Reliance Matrix — recommend companies conduct fact finding, check on the status of the FMLA request and speak directly to the employee. That involves talking to other workers who were at the concert, checking social media and checking in with the employee’s doctor to see if the request has been changed or updated. On multiple occasions, they warned against surveillance.
If there’s no response, the employer can send the worker a written notice outlining the problem, setting a deadline to be heard from and possible consequences, including termination, as long as the company has an honest belief there was misuse of FMLA. In court, as was the case in Jackson v. BNSF Railway Co., the employee would need to prove there was pretext for the firing.
“Some employers might just have an emotional response when they hear she was at the concert and she applied for FMLA. They want her gone; they want to take action. Take a step back, confer with HR, confer with your employment counsel, and make a plan to get her side of the story. … Don't just jump on the phone, and be confrontational. We don’t recommend that. Make a plan,” Rupprecht said.
Employers need to check to see if attending the concert was inconsistent with the reason for the worker’s leave, the presenters recommended. They also suggested using prevention to help curb fraud or abuse: Have a clear call-in policy, set expectations, check in regularly and confirm a return date.
Walker and Rupprecht also acted out other scenarios based on court cases to show HR pros how to respond when FMLA is potentially being abused by remote workers, including workers who allegedly were exercising while away from work with a shoulder injury, dancing at a pool party while on leave for a foot injury and filming a snowboarding show out of state while out for a diabetic reaction.