When an employee takes FMLA leave there is usually nothing to write home about.  The employee requests leave properly, provides the required medical certification in a timely fashion, and returns to work when she says she will.  All is well.

But what do you do if an employee takes intermittent FMLA leave before a long weekend and then shows up Monday with a nice new tan?  What if an employee takes leave to care for a sick family member, but the workplace begins buzzing that he was really at the big game?  Many employers experience, or at least suspect, FMLA abuse.  When you have a case of potential abuse on your hands, however, you must tread carefully. 

A recent case illustrates the right way to proceed.  Last month a federal Appeals Court ruled in Scruggs v. Carrier Corporation that an employer who suspects an employee of abusing FMLA leave – of lying about the purpose of requested leave, in other words – need only have an “honest suspicion” that the employer misused or abused his FMLA leave.  So, what exactly does that mean? In the case, Carrier granted intermittent FMLA leave to Scruggs to take his mother to medical appointments.  On a day Scruggs requested off for this purpose, Carrier, who had suspicions about Scruggs’ use of FMLA leave, arranged surveillance.  The investigation showed that Scruggs never left his home that entire day except to get his mail.

Carrier felt this proved that Scruggs had abused his FMLA leave, but took extra steps in an abundance of caution and asked him for an explanation.  At first, Scruggs had no explanation, but eventually he offered a convoluted story where he left his house through the back door and rode to his mother’s house with his brother (attempting to explain why he was not seen leaving and his car never moved).  There were problems with his story though:  documents he provided showed he picked up his mother at 11:30 a.m. but that he was at the doctor’s office between 10:00 a.m. and 10:30 a.m.  Carrier concluded there were too many inconsistencies in Scruggs’ account and that Scruggs had lied, so it terminated his employment.  Scruggs sued.

The trial court found that Carrier did not interfere with Scruggs’s FMLA rights or retaliate against him for taking FMLA leave, and the Appeals Court agreed.  The Appeals Court noted that all the evidence supported the conclusion that Carrier had an “honest suspicion” that Scruggs had abused his FMLA leave – there was no factual question about Carrier’s belief, so it was not even for a jury to decide whether his story was the truth or not.  It did not matter whether or not he actually lied, or actually abused his FMLA leave because the employer reasonably and honestly believed he had.

The Scruggs case highlights that while federal courts will not tolerate employer retaliation against employees exercising their FMLA rights, they also will not protect employees who abuse the law.  Carrier was well-positioned in this case because it carefully gathered clear evidence of fraud and gave Scruggs an opportunity to explain before taking action.  Only after crossing their ‘T’s and dotting their ‘I’s did Carrier pull the trigger.  In contrast, a poor  investigation (or no investigation) or a too-quick reaction could support an argument that the decision was actually pretext for something else – an intent to retaliate.  Smart employers do not want to go there.

So, in the case of the employee with the tan or the employee supposedly at the big game, a savvy employer knows that this type of evidence alone is well below the threshold to support an honest belief defense.  However, this type of information may be a red flag indicating that the employee should be monitored or the matter should be investigated, and steps should be taken to ensure that future leave is used appropriately and in compliance with the FMLA.