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Disability, Leave & Health Management Blog Offering Practical Guidance to Employers

Dishonesty Concerning Vacation While on FMLA Leave Leads to Termination

Recall our post concerning the employee on FMLA who went to Cancun to recover from surgery. The court upheld her termination for violating a rule that those receiving wage replacement benefits must stay in the immediate vicinity of their homes.

Now comes a nurse on FMLA with a back and leg injury, collecting disability benefits, who vacationed in Mexico during her leave. While there, she posted on a social media site photos of her riding in a motorboat, lying on a bed holding up two bottles of beer and holding her infant grandchildren.

The nurse’s co-workers saw her postings and complained that she was misusing FMLA. The nurse had a different perspective. She emailed  her supervisor, complaining that the staff had not sent her a get well card.  Her supervisor responded that " since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work." The nurse responded that she had used a wheelchair at both airports and did not stand for any length of time.

When the nurse returned to work, she initially repeated that she had used a wheelchair at the airports but after being reminded that airports have cameras, conceded that she was not in a wheelchair at either airport.  Her employer terminated her for violating a policy prohibiting “dishonesty, falsifying or omitting information….”  She sued, alleging that her employer interfered with her exercise of FMLA rights and terminated her in retaliation for taking FMLA.

The court granted summary judgment to the employer, holding that the employer had the right to terminate the plaintiff for dishonesty and alternatively because it had an “honest belief” that she had been dishonest. (Lineberry v. Richards et al (E.D. Mi. February 5, 2013).

This is yet another case, see here, where the posts on social media sites of or by an employee on FMLA causes the employer to question whether the employee is using FMLA leave for its intended purpose. As social media becomes even more ubiquitous, this is likely going to be a recurring theme in leave litigation.