1. FEATURE STORY: IS HAVING FUN WHILE OUT ON FMLA LEAVE A SIGN OF FRAUD?
Late last year, a Canadian insurance company cut off benefits to a Quebec woman who had been on sick leave for depression for over a year after it saw pictures on Facebook of the woman having fun at a Chippendales show, at her birthday party, and on a trip to the beach. The company claimed the pictures showed that she was no longer depressed and could work. The woman claimed that she was merely following her doctor's advice to try to have fun, including hanging out at a local bar with friends and taking short trips to sunny locations, as a way to forget her problems.
Although this situation pertains to Canadian insurance regulations, it highlights a scenario that U.S. employers could face themselves when it comes to employees taking leave under the Family and Medical Leave Act (FMLA). The question is not whether an employer can use employees' Facebook pages against them. (The answer to that is it's generally legal, because there's no law against it. Whether it's right or ethical is a whole different question.) The question is where's the line between an employee having fun and committing fraud?
Although there certainly are some employees who abuse the FMLA, be careful of holding onto the belief that employees who take FMLA leave must be bed-ridden or homebound, and if the employee can go to a bar, work another job, play sports, etc., then the employee should be able to go to their regular job. This mindset cost one Michigan employer over $278,000.
Facts of the case: An employee had been diagnosed with post-traumatic stress disorder and depression, for which she qualified for intermittent FMLA leave. Her doctor recommended that she seek the company of supportive people when she was going through an episode.
Her employer fired her after finding out that she went to the dentist, had her hair styled, and went out for drinks with a friend on a day she took FMLA leave. The company argued that her activities were inconsistent with her health condition that made her unable to perform her job duties. The employee countered that she had gone to the dentist to fix a painful broken tooth, which could exacerbate her condition; going to the salon and going out for drinks allowed her to get the support of friends. A jury sided with the employee. (Hyldahl v. AT&T, E.D.MI, No. 1:07-cv-14948, 2009)
Looks Can Be Deceiving
This case shows that what may look like FMLA abuse is not always the case. Consider the difference between an employee with a bad back who participates in a bowling tournament while on leave and an employee with a bad back who takes an office job while on leave from their manual labor position. There's a high likelihood that the first employee is abusing FMLA leave, because the employee's activity seems to conflict with his/her medical restrictions. The latter employee, on the other hand, hasn't done anything wrong by working elsewhere, if the secondary job comports with his/her medical restrictions.
If you are suspicious about an employee's on-leave activities, investigate before acting. What did the employee's doctor order? Are the employee's activities in-line with his/her medical restrictions? Unless you are a doctor, you should not be making medical assumptions. The Canadian insurance company said that it did not base its decision solely on the Facebook pictures.
Under the FMLA, HR can contact the employee's doctor for the purpose of clarifying or authenticating the employee's initial certification or recertification. If you have reason to doubt the validity of the certification, you can get second and third opinions.
For more advice on what to do if you suspect FMLA fraud, read Cutting Down On Abuse Of Intermittent FMLA Leave.
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