The Sixth Circuit has affirmed summary judgment for an employer who terminated an employee on FMLA leave based on its “honest belief” that the employee had “over-reported” his restrictions to avoid doing light duty work. Seeger v. Cincinnati Bell Telephone, (6th Cir. May 8, 2012).

Under the labor contract, an employee on otherwise unpaid FMLA leave could receive paid disability benefits by allowing the employer access to his or her medical records and by agreeing to work in a light duty position consistent with any medical restrictions, if required to do so. After plaintiff was on FMLA and paid disability leave due to a herniated lumbar disc for three weeks, the employer offered him temporary, part-time, sedentary telephone work. Plaintiff’s doctor said plaintiff could not do any restricted work.

Just days after rejecting restricted work, plaintiff visited the Oktoberfest in downtown Cincinnati, where he walked approximately ten blocks.  He encountered co-workers, some of whom told the human resource department that they had seen plaintiff “walking unassisted and seemingly unimpaired through the crowded festival.” In investigating the incident, the company also reviewed the employee’s medical records. When asked why he could attend Oktoberfest but not do part time sedentary work, plaintiff said his doctor prohibited him from doing light duty. The company concluded that plaintiff had “over-reported” his symptoms to avoid part time, light duty work and terminated him for disability fraud. 

Rejecting plaintiff’s FMLA claim, the court held that “an employee on FMLA leave may be terminated for violating the more stringent requirements of a concurrent paid leave policy, as long as that policy is reasonable” and does not conflict with or diminish the protections of the FMLA. The court concluded that the employer had made a reasonably informed and considered decision, which gave it an “honest belief” that the employee had committed disability fraud.

The lesson from this case is that an employer in search of tools to ensure that FMLA leave is used for its intended purpose may find or even create those tools in the “more stringent requirements” for a concurrent paid leave policy.