Strategies for Handling FMLA Abuse

Overview of the FMLA
The FMLA provides eligible employees with twelve weeks of unpaid leave and establishes reinstatement rights for individuals who take qualifying leave. See Family and Medical Leave Act § 2612(a)(1), 29 U.S.C. § 2614(a). Some of the qualifying reasons for leave include (1) to care for a newborn child, (2) to care for an adopted or foster child, (3) to care for a family member with a serious health condition, and (4) to care for the employee’s own serious health condition that renders the employee unable to perform his or her job. See 29 U.S.C. § 2612(a)(1).

Employees may take continuous leave, or, under certain circumstances, they can take leave intermittently or on a reduced leave schedule. See 29 C.F.R. § 825.202(a). Intermittent leave is FMLA leave taken in “separate blocks of time due to a single qualifying reason.” A reduced leave schedule is a leave schedule that “reduces an employee’s usual number of working hours per workweek, or hours per workday.” All types of leave can be abused, although intermittent leave is probably the type of leave that is abused most often.

Using Recertification to Address Suspicious Patterns of Leave
The FMLA regulations are very specific on the parameters of recertification of FMLA leave. In general, employers may ask an employee to provide recertification no more often than every 30 days and only in connection with an absence by the employee. See 29 C.F.R. § 825.308(a). If, however, the initial medical certification that led to the employee being on FMLA leave indicates that the minimum duration of the serious health condition is more than 30 days, the employer must generally wait until that minimum duration expires before requesting recertification. See id. § 825.308(b). In all cases, including cases where the condition is of an indefinite duration, the employer may request a recertification for absences every six months. See id.

Oftentimes, however, employers notice suspicious patterns in the duration and frequency of leave. For example, an employee approved for intermittent absences due to migraines may only use the leave on Monday or Fridays. The FMLA permits recertification to address these suspicious leaves of absence. Specifically, requesting recertification in less than 30 days is permitted if (1) the employee requests an extension of leave, (2) the circumstances described by the previous certification have changed significantly, or (3) the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification. See id. § 825.308(c).

Using Surveillance to Combat FMLA Abuse
Sometimes the frequency or the duration of the leave is not the issue. Instead, the problem is the activities that in which the employee is engaging during leave. For example, while out on leave because of the employee’s own serious health condition, the employee may work a second job, engage in manual labor, run errands or go shopping, or engage in social or recreational activities that appear to be inconsistent with the need for leave from work.

Surveillance could lead to FMLA interference claims. With the Internet and social media being such a prominent part of individuals’ lives, it is not uncommon for employees to be connected through any of the various social media platforms that are readily available (e.g., Facebook, Tumblr, Snapchat, Instagram, Twitter). Moreover, it certainly is not unexpected for an employee on leave to continue to post updates to these social media platforms during his or her leave. If the employee on leave posts something that appears inconsistent with the leave (for example, hoisting an alcoholic drink in the air with the arm that is supposed to have a complete lifting restriction, walking around and carrying heavy bags of groceries after injuring a leg, or working for another employer) and if a coworker brings these seemingly inconsistent behaviors to the attention of the employer, the employer is then faced with a potential abuse issue.

One avenue to combat the potential abuse is to hire a private investigator to conduct surveillance on the employee. This approach is commonly used in workers’ compensation cases and in personal injury cases.

The issue that arises when using surveillance, however, is whether it could lead to FMLA interference claims. The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of an employee’s rights under the act. See 29 C.F.R. 825.220(a)(1). The FMLA’s prohibition against interference enjoins an employer from discriminating or retaliating against an employee for having exercised or attempted to exercise FMLA rights. See 29 C.F.R. 825.220(c). To establish an FMLA interference claim, an employee would argue that the employer’s surveillance of him interferes with his ability to take and/or exercise FMLA rights or penalizes him for exercising such rights.

Thus, employers must have a good faith belief that the leave is being abused before engaging in surveillance. The fact that an employee simply requested FMLA leave will likely not be enough to establish good faith. For example, in Casseus v. Verizon New York, Inc., 722 F. Supp. 2d 326, 337–38 (E.D.N.Y. 2010), the court found that there were genuine issues of material facts precluding summary judgment on the employee’s FMLA interference and retaliation claims where the employer ordered surveillance on the employee (something the employer admitted it did infrequently) almost immediately after the employee submitted a leave request. See id. While the employer relied on what it considered a “pattern” of absence in that the employee requested leave for the same time of year as the employee had done four years before, the court found that this was not truly indicative of a “pattern.” See id.

Moreover, at times, what the employer learns from the surveillance will require it to obtain additional information about the leave and the employee’s abilities before taking any corresponding employment actions. See Nelson v. Oshkosh Truck Corp., No. 07-C-509, 2008 WL 4379557, at *2–3, 5 (E.D. Wis. Sept. 23, 2008) (denying summary judgment to the employer but holding that the surveillance report justified the employer taking further action and asking the employee or the employee’s health-care provider about the employee engaging in activities while on leave that appeared inconsistent with the leave).

Surveillance implicates state law considerations. Using surveillance to track an employee’s actions while the employee is on leave also creates the potential that various state law tort claims, including invasion of privacy, trespass, and intentional infliction of emotional distress, could be brought against the employer. While each state may have different elements and requirements to prove these types of claims, the circumstances surrounding the surveillance will usually dictate whether these are viable claims. In most cases, when a private detective takes photographs and/or prepares a report of his observations of the employee in public, the actions will not amount to an invasion of privacy. See Vail v. Raybestos Prods. Co., 533 F.3d 904, 906 (2008); see also Tucker v. Am. Employers’ Ins. Co., 171 So. 2d 437, 439 (Fla. Dist. Ct. App. 1965) (finding no violation of a right to privacy when the investigator properly shadowed and trailed an individual in a reasonable manner).

However, if a detective (or, even more egregious, a representative of the employer) goes to an employee’s house and peeps through the employee’s window, this would not only rise to the level of actionable state law tort claims but could also run afoul of state law criminal laws. See Pinkerton Nat’l Detective Agency, Inc. v. Stevens, 132 S.E.2d 119, 108 Ga. App. 159, 164–65 (Ga. Ct. App. 1963) (holding that the attempt to shadow the plaintiff by searching her property, looking into her windows, attempting to gain entrance into her home under false pretenses, and following her closely in public places was sufficient to constitute a violation of the right to privacy); see also Souder v. Pendleton Detectives, Inc., 88 So. 2d 716, 718 (La. Ct. App. 1956) (finding that an invasion of the right to privacy was sufficiently pled by a workers’ compensation claimant and his wife and that a violation of a “Peeping Tom” statute may have occurred when detectives trespassed onto the plaintiffs’ property and looked into the windows of their home).

Conclusion
While most employees who take FMLA leave do so for legitimate reasons, there are, unfortunately, some bad actors whose reasons are not above reproach. In those circumstances, employers are not without recourse when they suspect abuse of leave. Recertification gives the employer the ability to have the employee’s health-care provider look at the employee’s need for intermittent leave and assess the frequency and duration of leave. Surveillance provides a tool to employers to gather additional information regarding how an employee is acting while on leave when the employer sincerely believes that the employee is abusing leave. Such surveillance will not constitute interference with an employee’s right to take FMLA leave when any actions that flow from the surveillance (discipline or termination) are based on an honest belief of FMLA abuse. In addition, such surveillance will not violate state law tort claims, like violation of privacy, when the surveillance is done in a reasonable and consistent manner. Employers and counsel should carefully review the specific circumstances and proceed on a case-by-case basis when determining whether to use these mechanisms.

Keywords: litigation, employment and labor relations law, FMLA, abuse, leave, recertification, surveillance

_{Teresa D. Teare is a partner and Shelby S. Skeabeck is an associate at Shawe Rosenthal in Baltimore, Maryland.}

^{Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}