YOU CAN TAKE A LEAVE BUT YOU CAN’T TELL A LIE

Every once in a while, I read a case that just makes sense. You know, one where the law is applied the way it is supposed to be.  This one involves the Family and Medical Leave Act. The purpose of the law is to protect individuals who can’t work because they have a serious health condition. It is, in short, a shield. And when it is used properly, it provides the intended protection. Unfortunately, the FMLA is often used as a sword.  An employee who is on the verge of losing his or her job suddenly comes up with some ailment and needs the leave. Then the employer feels handcuffed.

Not so fast. Come with me on a little trip, which  starts in Detroit where a hospital hired a nurse.  One day, the nurse was moving stretchers at work. The next day, she said she woke up with excruciating pain in her lower back and leg. Her doctor, who was employed by the same hospital, suggested a leave. The nurse applied for and was granted FMLA leave.

It just so happened that the nurse had a preplanned, prepaid trip to Mexico scheduled, which coincided with her FMLA leave. She didn’t want to get in trouble at work, so she got a statement from her doctor, who said the trip would not be as physically demanding as performing her work duties and would not interfere with her recovery. So off to Mexico she went.

So far, so good right?  Not quite. You see, the nurse had a Facebook page. And on it she posted pictures of her vacation in Mexico, riding in a motorboat and lying on her side holding up two bottles of beer in one hand. She also posted photos of herself while she was standing and holding her grandchildren, one in each arm, and she wrote about trips to the store, watching her grandchildren and taking online classes. Her coworkers complained to management.

And that’s not all. She sent an e-mail to her supervisor complaining that she had not received a get well card from the staff.  And thus began the e-mail chain. Her supervisor responded by saying “the staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.”

Here is what the nurse said in her reply:

Jessica,

As far as the airport, customs, etc., goes, I was in a wheelchair because I couldn’t stand that long. As far as the plane goes (3.5 hr. flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.

* * * * *

I want to come back to work as soon as possible and wouldn’t have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

One small problem: She didn’t use a wheelchair on the trip. When the nurse got back from leave, the hospital held a meeting and asked the nurse about this statement.  At first, she stuck to her statement, but then admitted that he had lied. In fact, she ultimately admitted that she walked through both airports, stood in line for more than 30 minutes and held her grandchildren, all of which violated the restrictions from her doctor.  The hospital fired her for dishonesty, which is a violation hospital policy. She sued, claiming the hospital interfered with her right to take FMLA leave and retaliated against her for taking leave.

And she lost.

The court went right to the FMLA regulations when it granted summary judgment for the hospital:

“An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”

The court noted that the nurse lied about her abilities and about the wheelchair and  then admitted that she lied,  so that evidence was undisputed.  The hospital didn’t do everything right, however.  For example, there were some inconstancies in the reason for the termination. But the court reconciled those inconsistencies and was satisfied that the hospital had fired the nurse for lying and would have fired her for lying whether she was on a leave or not.

But then the court went on to say that it didn’t really matter if the nurse lied or not. Using the “honest belief” doctrine, the court stated:

“An employer is entitled to summary judgment under the “honest belief” doctrine when the employer honestly believes, based  on particularized facts, that an employee lied and misused her FMLA leave and disciplines/terminates such employee based on such belief.”

Now that is the way the FMLA is supposed to work. This almost restores my  faith in it.  You can read the entire case, Lineberry v. Detroit Medical Center here.

Speaking of the FMLA, look for our survey of how the FMLA has impacted you in our next HR Focus in mid-March.