Oh, my fraud! 67 FMLA certifications from two chiropractors

The federal Family and Medical Leave Act (FMLA) does not protect employees if they obtain leave fraudulently. Some employees recently learned this the hard way.

The case

On June 16, 2017, an employer issued furlough notices to the employees at one of its facilities. Over the next few weeks, 67 employees from the facility asked to take medical leave for minor injuries.

While the high number of leave requests alone was unusual, the certifications added to the fraud suspicion, as:

• They were similar or identical in content;
• They were all were signed by one of two chiropractors (one chiropractor provided 14 in one day);
• They all indicated that the employees suffered from minor musculoskeletal conditions such as sprains or muscle spasms;
• All but one stated that the employees sustained the injuries while off duty;
• All forms described general medical conditions and included no individualized assessment; and
• All called for leave of eight weeks or more.

Under the company’s benefit plan, furloughed employees were treated differently depending on their health conditions. The two health and benefit policies were:

1. Furloughed employees on medical leave received benefits for up to two years.
2. Furloughed employees not on medical leave received benefits for only four months.

Employees terminated for dishonesty and fraud

Suspecting benefits fraud, the company charged the employees with violating its workplace rule against dishonesty. While the disciplinary process played out, the employees were allowed to take the job-protected leave. The company also maintained their benefits during the leave.

Following the hearings, however, the employer terminated the employees.

Employees sued

In response, 58 employees filed a suit against the employer, alleging FMLA interference and retaliation.

The district court found in favor of the employer, indicating that the employer had provided a consistent and legitimate, nondiscriminatory reason for terminating the plaintiffs based on its belief that the employees were seeking time off work for illegitimate reasons.

The employees appealed, but the Appeals Court agreed with the district court.

Adkins v. CXS Transportation, Incorporated, Fourth Circuit Court of Appeals, No. 21-2051, June 16, 2023.

Key to Remember: Employers do not interfere with an employee’s FMLA rights when they terminate employees based on the honest belief that the employees are not taking FMLA leave for an approved purpose, regardless of whether such belief is correct.