By Sara J. Ackermann
May 19, 2014
Recently a client’s Human Resources Manager complained to me that there was “nothing” the company could do to prevent an employee from “faking a migraine” when she felt like taking off in the middle of the day. This particular employee was certified for intermittent leave under the Family Medical Leave Act, but the same question could arise had the employee been taking leave as a reasonable accommodation under the ADA.
I responded, “But of COURSE there is SOMETHING you can do, have you thought of placing her on surveillance?” The HR Manager was surprised with my response. “Can we really do that?,” she asked. I explained that so long as she hired a reputable company to do the surveillance -we don’t want someone who is going to trespass or otherwise engage in illegal activity during the surveillance process- there was nothing under the FMLA or the ADA that barred an employer from putting an employee on surveillance to confirm suspicion of FMLA or ADA fraud. Of course, it should be something considered only in cases where a strong suspicion exists so there could be no allegation that the employer “interfered” with an employee’s right to take FMLA. (Strong suspicion might exist when the employee is curiously absent every Friday afternoon and Monday morning, for example.)
Before surveillance, make sure the employee understands the “rules” regarding FMLA leave so there are no misunderstandings. For example, if the employee leaves in the middle of the shift due to a migraine, and the migraine is over in an hour, is he supposed to return to work or can he then stay home the rest of his shift? Also, make sure you understand what the employee can and cannot do. If the employee is suffering from depression, it might not be considered FMLA abuse if she is seen shopping, running errands, or playing with her children during times when she is too blue to work. For example, in one case an employee claimed she was wrongfully terminated for alleged FMLA abuse when she was just doing what the doctor ordered by engaging in routine daily errands during her leave. Nelson v. Oshkosh Truck Corp., No. 07-C-509, 2008 WL 4379557 (E.D. Wis. Sept. 23, 2008).
Bottom line: If you have an honest good faith question regarding whether an employee is engaging in FMLA fraud (or taking any leave for fraudulent reasons) then surveillance might be your answer.
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