Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.
So, what do you do?
Fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave.
Tread lightly, however, before making that decision, for in Jones v. Gulf Coast Health Care, the 11th Circuit Court of Appeals concluded that based on these same facts, Rodney Jones was entitled to a jury trial on his FMLA retaliation claim.
How did the court reach this (troubling) conclusion?
1. Temporal proximity: The employer suspended Jones on the day he returned from his FMLA leave and fired him a few days later. According to the Court, the “close temporal proximity” between the end of Jones’s FMLA leave and the adverse action is sufficient to create a jury issue on the causation prong of his FMLA retaliation claim.
Me: When is the employer supposed to fire him? During his vacation? Wouldn’t that have created an even closer temporal proximity? Or should it have let him return to work and waited months before announcing its decision? Wouldn’t that have created a jury question on the issue of pretext? (How could the vacation genuinely have motivated the decision if the employer waited months to act on it?) The best practice is never to wait but immediately to advise of the consequences. Yet, by suggesting that such immediacy dooms the employer, the Court is placing all employers in a no-win situation.
2. Pretext: According to Jones, the only explanation the employer provided him “was that he was being fired for abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Yet, (a) Jones was not told that he had violated the company’s social media policy or that the company believed he had unnecessarily prolonged his recovery to take a vacation; and (b) because the company lacked a policy that required employees to stay at home or refrain from traveling while on FMLA leave, it could not conclude that he had “violated the ‘spirit’ of medical leave — to rehabilitate and recover.” Therefore, because of these “inconsistencies and contradictions” a jury should decide whether the employer’s explanation was a pretext for retaliation.
Me: The employer advised Jones that it was terminating him for “abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Must it expressly rely on a written policy (social media or otherwise)? Must a company have a policy forbidding employees on FMLA leave from traveling or vacationing? By taking an FMLA leave for one’s own serious health condition, an employee certifies the inability to work, or the inability to perform at least one essential function of the job). If vacation photos posted to Facebook suggest that the employee had recovered and no longer needed to be out on medical leave, how is the employee not abusing his FMLA leave? And how is an employer not justified in firing the employee for this lie?
This result should disturb all employers. I would have reacted the same way as Gulf Coast Health Care, and, frankly still would despite this decision. The employment relationship is based on trust, and once that trust erodes, the relationship is broken (almost always beyond repair). If an employer concludes that an employee has lied about the need to be on FMLA leave, how can it react any way other than termination?
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Being capable of lying around on the beach doesn’t mean you’re suddenly capable of performing the duties of your job, so that is a danger for the employer. Seems like this guy, working at a hospital, and having had shoulder surgery, probably still have physical limitations. Even if he can’t perform at least one of the essential functions of his job, this doesn’t mean he isn’t still ‘recovering’ even if it’s in the Caribbean. There is no obvious fraud here at all.
I totally agree. I had a shoulder replacement and spent two weeks on the beach during my second month of recovery but I could not have performed a full work schedule by any means and I had physical therapy three times a week there at my own expense since it was out of my HMO’s network. My supervisor was aware of all of this too.
Agree with Joey and Debbie. I also had rotator-cuff surgery and a worker’s comp claim because of it. I took a trip with friends in the last weeks of my time away from work. While I was able to relax by a pool, eat in restaurants, and enjoy a watercolor class, I was also unable to carry my own luggage, drink or drive (or WORK) because of limited use of my arm and use of pain medication. People need to talk before they jump to conclusions.
agree… i can’t even see where trust was broken here. he openly posted the photos, and you know coworkers are going to see them. unless they were photos of him wrestling reef sharks? this just seems very, very petty. and to say it should be disturbing to all employers that someone might spend some of their recovery time on a beach instead of a couch is a bit much. i could understand some office gossip or irritation about it… but terminating the guy was pure retaliation. they ruled correctly.
I agree totally. As an HR practitioner, I would caution against the act of termination based on a picture. I can’t say how many times I’ve seen people perk up for a picture and are essentially not well. It would make more sense to have requested him to return to work on the premise that he has demonstrated that he is well or even request that he see a company approved physician to certify that he is in fact not well enough to perform the essential duties of his job. This would alleviate concerns on all sides and if he is well, he’d come back to work and if he refused then termination could be a viable option. Employers must be so careful to not assume the position of physician in FMLA cases and generally this looks very much like retaliation. I wouldn’t be surprised if there were some other reason he was terminated and the employer was only hanging the termination on FMLA. Bad-bad idea.
This reminds me of supervisors at a former company that didn’t think an employee that took intermittent FMLA could come back to work with their hair or nails done. Just because you have FMLA doesn’t mean you’re a shut in 24/7, nor should you be treated as such. Meanwhile we had an employee upstairs that would purposely elevate her blood sugar to leave for the day and go to the casino.
Um… although I agree that perhaps this was a violation of trust, depending on the type of work this employee performed, I don’t see how “relaxing” is NOT recovering from his surgery? I know from my own medical leaves after having children, that my mind could not function for work-level activities (nor my body), but going to the store, or resting at home, or resting elsewhere and recovering my mental capabilities, is what prepared me to return to work. I would expect any recovery to be similar. And if employers start mandating in policies what people can and cannot do on FMLA, then people will either get sneakier or find other ways to get around the system.
That said, in other western “mindset” countries, relaxing and vacationing are taken more seriously than in the US, and they seem to have better work-life balance. Perhaps the employer should stay out of people’s personal lives, as long as they are coming back when expected and getting the job done, and people come back refreshed and ready to give 100%, not exhausted and distrustful of how their employer and coworkers seem to have so much time on their hands to involve themselves to this level…
And this is also why I don’t friend coworkers on social media… LOL
I agree with all the others who have posted here. Was the employee supposed to lie around in bed all day? Did his health care practitioner put restrictions on the employee? Now, if the employee had posted pictures of him playing golf, parasailing, or some other physically demanding activity, then it would cause pause and possible action on the part of the employee.
I totally agree with the comments here. There appears to be an assumption that a person is not entitled to relax while on FMLA. Part of any recovery is the ability to relax and allow your body to heal. Where the person chooses to do that is irrelevant. It does not appear that the employee was out doing another job or other strenuous activity while on FMLA. I feel you’ve got the wrong take on this one, Jon.
Based on this story, the only employer I know of that could have a case for discipline would be the military, and then you wouldn’t get fired, you’d get counseling and be forced to take vacation days (aka leave). The reason that would work there is because you have geographic boundaries for when you are not in a ‘leave’ status (sometimes even when you are in a leave status there are geo boundaries). I suppose if your HR policies or medical restrictions specified proximity to doctor or means/length of travel allowed, you’d also have grounds.
I was out on FMLA – Birth of a Child. That should not prevent me from going on vacation during the FMLA period. Especially if I had planned the vacation well in advance. And I was using my leave to cover the leave of absence.
Gotta say, I’m surprised so many disagree with my take on this case. Rotator-cuff surgery + FMLA verification of inability to work + Facebook posts of Caribbean vacation should equal easy case for termination of employment. If the employee is healthy enough for an island vacation, he’s health enough to work, period.