[ By-Lined Article ]
Surveillance and Other Responses to Intermittent Leave Under the FMLA
By Paul D. Snitzer
November 21, 2008
The Legal Intelligencer
The Family and Medical Leave Act grants the right to be absent from work on an "intermittent" basis, that is, leave taken in separate periods of time because of a single illness, rather than one continuous period of time, to eligible employees. This right has proven to be one of the most bedeviling to employers because, where properly invoked, it appears to grant to employees the right to be absent from work at-will and without regard to an employer's policies.
For example, in Sabbrese v. Lowe's Home Centers Inc., a diabetic retail sales employee was required to eat when his blood sugar fluctuated outside of acceptable levels. The employer was aware of this medical condition and attempted to accommodate the employee's needs. However, on Nov. 8, 2001, the diabetic employee believed it was necessary to leave his workstation in order to eat, and he did so, leaving his area of the retail store unattended. For this conduct, discipline was issued against the employee.
The court found that a fact-finder, i.e., a jury, could find that the action of the employee was justified. It held that "leave taken by a diabetic employee in order to eat to correct low blood sugar when medically necessary may qualify as intermittent leave under the FMLA." Accordingly, "where a diabetic (or otherwise impaired) employee faces a medical emergency and is unable to comply with his employer's break policies . . . a reasonable finder of fact may determine that . . . even if [the employee] violated company policy by leaving [work] . . . he still qualified for FMLA intermittent leave." Also see Collins v. United States Playing Card Co., where a court found "genuine issue of fact as to whether Collins' departure form his work station before his scheduled break time" to attend to medical condition was "a medical necessity."
While the right to be absent from work on an intermittent basis may further a justifiable societal policy, it is also subject to abuse. The caselaw indicates that employers are willing to undertake aggressive measures to counter perceived abuses in the taking of FMLA intermittent leave and that courts will approve these aggressive measures.
In particular, a body of caselaw is developing that analyzes an employer's video or other types of surveillance of an employee who is taking FMLA leave. In one recent case, Vail v. Raybestos Products Co., the employee worked the night shift at a factory but suffered from migraines that "crept up on her on short notice." During a four-month period in the summer of 2005 the employee missed work on 33 days, according to the opinion. Growing suspicious, the employer hired an off-duty police officer to monitor the employees' activities. The police officer soon observed the employee working side-by-side with her husband in his lawn-mowing business. The employer then terminated the employee.
The 7th U.S. Circuit Court of Appeals upheld the termination. It relied on precedent holding that an employer may refuse to reinstate an employee on a FMLA leave if the refusal was "based on an 'honest suspicion' that she was abusing her leave." Applying that test to the facts, the court found that the employer's conduct of surveilling the employee, while perhaps not "preferred employer behavior," nevertheless was sufficient to give the employer an "honest suspicion" that the employee was not using her leave for the intended purpose. Because it acted on the basis of this honest suspicion, the employer did not violate the FMLA.
The 7th Circuit's decision in Vail was consistent with a line of other decisions from that circuit. See Crouch v. Whirlpool Corp., where the court ruled "an employer is under no obligation to reinstate an employee who misuses disability leave" and Kariotis v. Navistar International Transportation Corp., where the court ruled an employer properly terminated an employee after engaging in video surveillance of her activities during a leave of absence following knee surgery.
Employers should be aware that at least one circuit, the 6th, has criticized the 7th Circuit's "honest suspicion" holdings. In Smith v. Chrysler, the court wrote "to the extent the Seventh Circuit's application of the 'honest belief' rule credits an employer's belief without requiring that it be reasonably based on particularized facts rather than on ignorance and mythology, we reject its approach" and holding that "the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action."
Other courts have upheld terminations that occurred after videotape surveillance of absent employees. For example, in Colburn v. Parker Hannifin, the employee took intermittent leave because of headaches. He missed 25 days of work between October 2001 and January 2002. He also represented on paperwork that he was disabled during his migraine attacks and could not perform any activities, including driving.
The employer hired an investigator who observed and taped the employee during an absence driving his car, going to the gym, a liquor store and a movie rental store. The next day, when the employee was again absent, the investigator observed similar conduct. As a result of this investigation, the employer fired the employee. The 1st Circuit upheld the dismissal of the employee's claim that he was retaliated against for exercising FMLA rights. See also Stonum v. U.S. Airways Inc., where summary judgment was granted to an airline that terminated an employee on leave purportedly to care for her mother, but whom an investigator observed spending only a fraction of her time off at her mother's house.
Videotape evidence, however, is not a panacea. For example, in Nelson v. Oshkosh Truck Corp. the employer obtained videotape of an employee driving around town and Christmas shopping at various locations. The court, however, refused to dismiss the terminated employee's FMLA claims because her doctor had submitted an explanation that she was unable to reliably perform her job duties because of a mental illness and the side effects of a new medication. The court found that a jury could accept the doctor's explanation that the employee "would not be able to work over the period for which leave was requested, even though she was able to attend to personal business."
Although the 3rd Circuit has not yet addressed an FMLA termination claim that arose after videotape surveillance, its decision in Callison v. City of Philadelphia teaches that employers might deal with the intermittent leave problem by implementing effective absentee policies. This case evaluated a city of Philadelphia employment policy which required that employees absent because of illness, even an FMLA qualifying illness, must remain at home at all times during working hours, unless there was a need to leave related to the reason for the absence, i.e., to seek medical treatment. If there was a need to leave home for medical treatment the employee had to call the employer to tell it of this need.
The 3rd Circuit upheld this policy and the discipline imposed under it to an employee who failed to comply with the city's requirements during an FMLA leave. It rejected the employee's argument that "once an employee is pre-approved for FMLA leave, he/she should be left alone." It held that "nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave." The FMLA authorizes another approach where an employer is concerned that an employee is abusing leave time. This procedure allows an employer to require the employee to undergo a medical examination with a health care provider chosen by the employer. The purpose of this examination is to determine whether the employee in fact has a condition that justifies the request for medical leave.
The difficulty with this approach is that it is cumbersome, for a number of reasons. First, the doctor chosen by the employer cannot be regularly employed by the employer. Second, the doctor must be within normal commuting distance of the employee. Third, the employer must pay for the entire cost of the examination, including the employee's reasonable out-of-pocket travel expenses. Finally, and most importantly, if the employee and employer's experts disagree, the employer, before it can deem the leave unprotected, must require yet another opinion. This third opinion must again be fully paid for by the employer, but the doctor cannot be unilaterally chosen by the employer. Instead, the employer and employee have to engage in a discussion in good faith when choosing a third health care provider. If the employer does not act in good faith, then the opinion of the employee's original provider is deemed binding. So, this battle of the experts procedure established by the FMLA is time-consuming and costly, without guaranteeing any particular result.
Employers faced with the difficult task of managing an employee who appears to be abusing an intermittent leave of absence are not, as the above suggests, without recourse. However, careful thought and planning should be invested before there is an attempt to engage in videotaping or other surveillance of the absent employee.
Paul D. Snitzer is a partner in the employment and immigration practice group at Duane Morris. He focuses his practice in labor and employment law. Snitzer advises clients on issues relating to the employer-employee relationship, including imposition of termination and lesser discipline, harassment investigations, union-management relations, plant closings and creation and distribution of personnel policies.
This article originally appeared in The Legal Intelligencer and is republished here with permission from law.com.