Several times a year, we receive calls from clients intending to terminate employees absent from work for personal medical reasons as approved under the Family and Medical Leave Act. The employers typically explain that a co-worker sent them social media posts from the absent employee showing them at a vacation locale or otherwise engaged in recreational activities. The employers believe that these posts provide clear evidence of fraudulent use of FMLA time, and they want to terminate the employees on this basis.
These employers are sometimes surprised when we advise them to act carefully before terminating the absent employees on these grounds. Employees are entitled to FMLA leave when a serious health condition incapacitates them from performing their jobs. However, taking vacation or otherwise engaging in activities outside of their homes does not necessarily mean that the employees are engaging in FMLA fraud. As one federal judge put it, FMLA does not require house arrest, meaning that an employee may be incapacitated from working but is medically able to engage in other life activities. In some situations, a terminated employee produces medical information certifying that the activities portrayed in the social media posts were consistent with the doctor’s original diagnosis and work restrictions.
Employers are understandably troubled when a worker who is purportedly too sick or injured to perform their job appears to be using FMLA leave for vacation while their employer and co-workers deal with the fallout from their absence. In many cases, employers can use the social media posts to open an inquiry on whether the employee provided misleading information to support their FMLA leave application. This inquiry can involve a request for medical recertification based on apparent discrepancies between the limitations originally claimed and the employee’s activities while on leave. However, employers should not automatically leap to the conclusion that they have been misled before conducting a full review of the circumstances.
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