Evidence Suggests Flo Partied While on Medical Leave -- Can We Fire Her?

As reported on October 3, 2019, Flo, our Junior Associate, was diagnosed with Lyme disease (read about her original request for accommodation here). Since then, she’s asked for quite a few accommodations…working from home, stand-up dog bed, treadmill dog bed, coming in late, leaving early, specialty food needed for her ‘special diet,’ etc. We’ve played along, and granted her requests because she’s a good employee, because on balance they’ve been reasonable, and because we love her to pieces.

However, we recently began to suspect that Flo wasn’t really staying home sick when she was asking for days off due to her disease. We aren’t conspiracy theorists by any means, but something just didn’t feel right. As a result, we did something we never thought we’d do: we hired a private investigator to tail Flo. That Facebook screenshot you see to the right? That’s Flo, apparently having a good time with her friends. The problem with that? That picture was taken January 29…a day Flo called in and asked to use sick time.

We struggled mightily with how to handle this. Needless to say, she’s put us in ruff spot. Do we fire her? Do we investigate further? Do we ignore this? Regardless, surely we can take disciplinary against her for this, right? Well, according to DaPrato v. Massachusetts Water Resources Authority, maybe not.

Richard DaPrato worked for the Massachusetts Water Authority as a manager in its IT department (sidebar here as to whether these types of employees are entitled to overtime). Mr. DaPrato needed foot surgery and submitted a request for FMLA leave to undergo and recover from that surgery. The medical certification said he’d be able to put weight on his right leg after four weeks and that he’d be out of work for 4-6 weeks after the surgery.

Shortly after his return, Mr. DaPrato told his employer that he’d need additional leave for knee surgery. On that very day, his employer learned that Mr. DaPrato had taken a vacation to Mexico during the last two weeks of his previous leave. The company investigated, obtained video recordings of Mr. DaPrato walking, driving, and lifting luggage, and ultimately decided to terminate him.

Mr. DaPrato sued, claiming that his employer interfered with his FMLA rights by terminating him while he was on protected leave. The jury found in Mr. DaPrato’s favor and awarded him $1,332,271 in damages. The Water Authority appealed.

The Massachusetts Supreme Judicial Court rejected that appeal, stating “an employer may not treat the mere fact that an employee went on vacation while on FMLA leave, standing on its own, as grounds for an adverse employment action.”  Read the full opinion here. To drive the point home, the Court provided the following gem:

Here, DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process.

The court clarified, however, that misuse of FMLA time can be a legitimate grounds for termination. For example, as recently held by the Sixth Circuit, golfing while on FMLA leave for severe shoulder pain likely amounts to FMLA abuse. You can read that case, Labelle v. Cleveland Cliffs, Inc. here.

Ok. So DaPrato tells us we need to investigate. Investigate we did. That picture? That’s not Flo cheating on leave time. That’s Flo participating in doctor-mandated group therapy, something she does to treat her Lyme disease. Was the picture enough to raise suspicions? Sure, just like the picture of Mr. DaPrato fishing while on FMLA leave. But suspicions aren’t good enough. Congratulations, Flo…you’re here to stay.