People who abuse the Family and Medical Leave Act (FMLA) do so for a variety of off-the-wall reasons: to serve a jail sentence, attend a criminal court hearing, travel to exotic locations, go fishing or build a family business, for example.
But even if the fraudulent conduct is outrageous, whether an employer prevails in an FMLA leave abuse case often depends on whether it has conducted an exhaustive investigation, said Jeff Nowak, an attorney with Franczek Radelet PC in Chicago.
Some employers learn this lesson the hard way. Take the employee who had a bad back and could not stand or sit for long periods. While on FMLA leave, she posted videos of herself on Facebook drinking and dancing at a local bar. The employer fired her, noting that if she could dance, she could work.
A slam dunk for the employer?
No. The U.S. District Court for the District of Connecticut refused to dismiss her FMLA claims, finding that the employer should have conducted a closer review of her health condition and that it failed to consult with a medical provider to determine if this conduct was incompatible with FMLA leave. Rather than getting a second medical opinion that "would have provided the court with helpful evidence," the employer simply relied on its "lay opinion" that she could work if she could dance.
Nowak called this a "harsh decision for the employer" but noted that...
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