FMLA Articles

Employer’s honest suspicion wins FMLA abuse case


Key to remember:  ​Employers have options when they have reason to suspect that employees are abusing FMLA leave.

Applies to: All public employers and private employers with 50 or more employees.

Impact to customers: Leave abuse frustrates many leave administrators, but steps may be taken if employees engage in real or suspected abuse.


What do you do if you suspect an employee is abusing FMLA leave? What can you do?


Case in point

In January, Kyle began planning an exotic trip to take place in April. The trip involved a long, overseas plane ride. Part of this planning included asking for time off. This request was, however, denied because Kyle did not have enough accrued paid time off available.

Fast forward to March, during which Kyle’s doctor diagnosed him with a back condition affecting his ability to sit for long stretches. The employer approved his request for FMLA leave, which was to last at least into June.

Kyle apparently saw this as an opportunity to take his planned April trip. During the trip, Kyle’s coworkers learned it and reported it to company management. This did not sit well with Kyle, who responded by threatening those coworkers. The coworkers then shared the threats with company management.

The employer called Kyle as part of its investigation into FMLA abuse and the threats. Kyle referred the employer to his doctor. He cut the call short before the employer could discuss the threats.

The next day, the employer called Kyle again about its concerns he was dishonest about the medical leave, since Kyle was unable to sit for long periods, and the trip involved long periods of sitting.

This situation, my friends, entails an honest belief by the employer that Kyle was abusing FMLA leave. Employers may act on such honest beliefs.

Kyle again, cut the call short. Taking another route, the employer sent an email to Kyle to set up a time to discuss the threats. When Kyle didn’t reply by the indicated deadline, the employer sent a follow-up email terminating Kyle for violating company policies against dishonesty, unethical conduct, and violence.

Kyle sued, arguing that the employer interfered with his FMLA rights.

The court sided with the employer, indicating that employers are under no obligation to reinstate an employee who misuses leave. An employer’s honest suspicions that an employee is not using leave for its intended purpose can be enough to defeat an employee’s FMLA claim. It was plain that Kyle took FMLA leave due to his condition, then took a trip that was counter to the condition.

Even if the employer could have conducted a more thorough investigation, it was not required to do so. The honest suspicion was enough.

The fact that Kyle threatened his coworkers was also enough for the employer to terminate him, as the company also had a zero-tolerance policy against threats of violence. Kyle would have been fired for the threats regardless of whether he took FMLA leave.

Smith v. Yelp, Inc., N. D. of Illinois Eastern Division, No. 20-cv-1166, March 30, 2021

Takeaway: If you suspect that an employee may be abusing leave, ask yourself if it’s an honest belief, and take some steps, such as a bit of investigating. You may act on that belief, even if it turns out to be wrong.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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