“You Can’t Fire Me, I Just Came Back From FMLA Leave.”

by Jackson Lewis P.C.

Contrary to apparent popular belief, employees who have recently taken leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons unrelated to their FMLA leave.  Establishing a non-retaliatory termination in these circumstances can be challenging, however.  The timing of the termination alone can “look” retaliatory, and even a well thought out and justified termination might be viewed differently by a court.

The Eleventh Circuit Court of Appeals recently addressed this scenario in Jones v. Gulf Coast Health Care of Delaware, LLC, Case No. 16-111142 (April 19, 2017).  After exhausting his 12 weeks of FMLA leave for shoulder surgery, Mr. Jones was unable to return to work and was granted an additional month of non-FMLA leave.  During his extended leave – according to pictures he posted on Facebook – Mr. Jones spent a day at a local theme park and went to the beach while visiting his family for three days in the Caribbean. On his first day back at work, Mr. Jones was confronted about the Facebook posts and placed on suspension.  A few days later he was terminated for FMLA fraud and abuse.  He eventually brought suit for FMLA interference (failure to restore him to work) and FMLA retaliation (termination).  The trial court granted summary judgment for the company on both claims.

On appeal, the Eleventh Circuit saw the facts differently and reversed the summary judgment for the employer on the FMLA retaliation claim. The court found that Mr. Jones had presented sufficient evidence to create a factual dispute over whether the offered termination reasons  were inconsistent and, therefore, pretextual. This finding was partially due to the close timing between Mr. Jones’ FMLA leave and his termination.  The court also pointed to evidence casting doubt on the company’s purported reasons for termination.  Mr. Jones claimed he was told he was being fired for abusing FMLA leave based on his Facebook “vacation” posts.  During the lawsuit the company asserted additional reasons for terminating Mr. Jones, including violating social media policies by posting vacation photos which created an employee morale issue.  The social media policies allegedly violated by Mr. Jones, however, did not prohibit any of the activities for which he was fired.  The court also found the evidence of Mr. Jones abusing medical leave by going on vacation for a few days “was murky at best.”

The Jones case highlights the challenges employers may face when an employee is terminated shortly after using FMLA leave.  Such close timing may result in an inference that the termination was because of FMLA usage.  Employers can be better prepared to overcome this inference by providing an accurate summary of the termination reason to the employee and consistently standing by that reason going forward.  The offered termination reason should also be substantiated and adequately documented at the time of the termination.  If the termination is based on a policy violation, for example, the policy should be reviewed to confirm that the employee’s conduct actually violated the policy as written.

When terminating for suspected dishonesty or FMLA/medical leave abuse, employers should also be careful when relying on social media posts and general assumptions that spending a day at the beach is inconsistent with an employee’s medical restrictions. As compared to an employee with a lifting or walking restriction, Mr. Jones’ post-shoulder surgery restrictions may not have been glaringly inconsistent with his leisure activities.  Properly investigating concerns about dishonesty or FMLA abuse, including offering employees an opportunity to explain away their behavior, can be critical in defending cases later on.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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