What happens when a company terminates someone for FMLA fraud when they weren’t actually misusing it?

Oh, I thought you knew.

Ok, fine. I’ll answer my own question.

Let’s look at a recent opinion from the Fourth Circuit Court of Appeals. It involves an employee with diabetes who took leave under the Family and Medical Leave Act a few times.

• In August 2017, he returned a medical certification and was approved for intermittent FMLA leave for episodes of hypoglycemia.
• In January 2018, he submitted a nearly identical certification and was approved for continued FMLA leave.
• In April 2018, the plaintiff took two days off because of severe foot pain caused by neuropathy related to his diabetes.

That last leave created a red flag because his existing certification established leave only for his hypoglycemia and not for neuropathy. So, the plaintiff submitted letters, including one from his doctor, which presented a second reg flag. The doctor’s note stated that he had not suffered from complications of hypoglycemia since 2017. Although the plaintiff submitted additional medical documentation to support the neuropathy, the company was troubled by the alleged “conflicting medical documentation” about the hypoglycemia and terminated his employment.

The plaintiff later filed suit, claiming the company had retaliated against him for taking FMLA leave. The key to an FMLA retaliation claim is the plaintiff establishing that the leave specifically motivated the defendant to take an adverse employment action against him.

Here, the Fourth Circuit concluded that the defendant did not terminate the plaintiff because he took FMLA leave. Instead, it focused on the defendant’s belief that the plaintiff submitted contradictory medical paperwork in connection with this FMLA leave for hypoglycemia, namely, that the same healthcare providers opined that the plaintiff had not experienced hypoglycemia for over two years. The company continued to investigate by taking a statement from the plaintiff. Only then, based on its full investigation, did it terminate the plaintiff.

Here’s the money shot:

“Just because [a] termination reason was related to his FMLA leave, that is not necessarily direct evidence of discriminatory intent. We have said employee discipline for suspected dishonesty related to FMLA leave is not alone necessarily evidence of discriminatory intent, and reiterate so again.”

From the defendant’s perspective, the plaintiff misused FMLA leave, and the evidence supported the defendant’s belief—even if it proved mistaken. Indeed, just because an employee can later explain or justify his FMLA use, it does not mean an employer retaliated when it terminated the employee.

That’s because courts—say it with me, colleagues—do not function as a kind of super-personnel department weighing the prudence of employment decisions.

Employers can suspect FMLA fraud, investigate it thoroughly, and still get it wrong without violating the FMLA.