While posting vacation photos on Facebook during a leave under the Family and Medical Leave Act (FMLA) is probably not a stellar idea, the question of whether an employee can take a vacation during FMLA leave may not be so obvious. Two recent court cases illustrate an employer’s dilemma when faced with hearing about an employee who is on FMLA leave and has taken a personal trip during the leave. As with most employment cases, the holdings are very fact specific, however these cases remind us of the importance of a thorough analysis when faced with an increasingly common abuse of policy.

Overview of the FMLA and Its Prohibited Retaliation Provisions

The FMLA requires covered employers to provide qualifying employees with up to 12 weeks of unpaid leave per year for certain family and health conditions. The FMLA has employee protections which prohibit interference and retaliation by employers. In order to prove retaliation, an employee must show: (1) the employee invoked a right to leave under the FMLA, and (2) the employer made an adverse decision that (3) was causally related to the invocation of the employee’s rights.

Recent Cases

In Thomas Dunger v. Union Pacific Railroad (June 3, 2019), an employee took a fishing trip during his FMLA leave and his coworker live streamed the trip on Facebook. In Dunger, the employee thought his fishing trip was permissible because the trip occurred between his shift times and was not inconsistent with his medical restrictions. Upon hearing about the fishing trip from a coworker and disappointed with the employee’s choice, the company terminated him for violating the company’s policy against dishonesty and for misuse of his FMLA leave. The United States District Court for the Central District of California concluded that Union Pacific had a legitimate basis to conclude the employee had dishonestly misused his leave and upheld his termination, granting the company’s motion for summary judgment.

However, in DePrato v. Massachusetts Water Resources Authority (June 5, 2019), the Massachusetts Supreme Judicial Court affirmed the trial court jury verdict and judgment that the employer was liable for a retaliatory termination after the employee took a vacation during the last two weeks of his FMLA leave, resulting in a two million dollar award for the former employee. In DePrato, the employer terminated the employee based on its “good faith or honest belief” that the employee’s family vacation to Mexico during his FMLA leave for foot surgery was an improper use of the leave. The DePrato court noted that the mere fact that an employee took a vacation during FMLA leave is not, on its own, impermissible but requires more investigation as to whether the vacation is in line with the claimed reasons for medical leave. The DePrato case makes clear that an employer cannot automatically assume an employee is violating his or her FMLA leave by taking a vacation.

These cases along with other similar cases raise interesting questions about what is and isn’t allowed during FMLA leave. What if your employee traveled to another state or country for a surgery? What if your employee’s doctor prescribed a peaceful and relaxing get away as a recovery mechanism? Can an employee argue that because the company policy requires them to use paid time off concurrently with FMLA leave they are entitled to take the vacation? What if the vacation was a short weekend getaway when the employee would not have been working anyway?

What Can Employers Do to Curb FMLA Abuse?

If an FMLA policy has clear language strictly prohibiting certain travel during FMLA leave, the answer is more straight forward. However, in the absence of a specific policy prohibiting certain activities during leave, an employer may be in a difficult predicament. To prevent risks and combat potential FMLA abuse, consider the following:

• Add language to your company’s FMLA policy that clearly dictates whether travel is allowed during such leave and what approval is required;
• Add language to your company’s FMLA policy that intentional misuse of leave is a ground for termination;
• Ensure that investigations of employee misuse of the FMLA policy are conducted and are thorough and objective;
• Be certain alleged abusive conduct is inconsistent with leave prior to taking any adverse action;
• Consider other policy violations as a basis for termination if applicable;
• Consider adding a policy addressing conduct that is abusive of a company policy;
• Require employees to certify their absences and seek recertification at the earliest opportunity; and
• Keep an open line of communication with employees to obtain information about their health condition, the duration of the leave and their expected return to work date.

The above decisions point to the importance of exercising caution and analyzing the specific facts of each individual case when dealing with an employee who may have abused the FMLA process.