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Can Employees Go On Vacation While On FMLA?

On Behalf of | Jan 8, 2020 | Disability Discrimination, Employment Discrimination, Family Medical Leave Claims, Wrongful Termination |

Can Employees Go On Vacation While On FMLA?

Best Ohio Employment Disability Discrimination Attorney and Top FMLA Lawyer Answer: Can my employer terminate my employment for going on vacation while I am on FMLA? What can I do while I am on FMLA? What happens if my employer thinks I am faking a medical condition to get FMLA? How do I find an employment lawyer near me? Can I Be Fired While On FMLA? Do I have to cancel scheduled vacations if I request FMLA leave from my job? Can Employees Go On Vacation While On FMLA?

As the Ohio skies turn a perpetual state of grey and the temperature drops into the teens, we all think the same thing: I need to get out of this place. Some employees budget their time off allowance or paid time off (PTO) so that they have enough left at the end of the year to jump on a plane or in a car and head someplace warm. Some of us, however, were never good at budgeting. I always spent my entire allowance at the comic book store almost immediately after getting it. Now, most of us our honest and just keep showing up to work. But some employees decided to get creative and tried to fake the need to use medical leave to do it. Most employees have played hooky at least once in their life, but one thing that most people haven’t done is use the Family and Medical Leave Act (“FMLA”) to do it. As a result of the fakers, employers get extra suspicious about employees that travel or go on vacation while on FMLA approved leave – particularly when the employee posts pictures of jet skiing while taking FMLA after an alleged back injury. (See Top Medical Leave Lawyer Reply: Can I Attend Family Events Or Vacations While On FMLA?; Top FMLA Lawyer Reply: Is Traveling To Care For Family Members Covered Under The FMLA?; Another F’ed Up Case (The F-Word Is Facebook)).

As our employment law attorneys have blogged
before, FMLA leave provides an employee with up to 12 weeks of leave and
protects an employee’s job when they need to take time off to treat a serious
medical issue either for themselves or for a family member. These 12 weeks may
be used all at one time or as medically needed, such as one or two days a month,
which is called intermittent FMLA leave. (For more information about the Family
Medical Leave Act, see Can
My Boss Control When I Take FMLA? I Need The Top Lawyer In Ohio For Medical
Leave Claims!
, and Can
My FMLA Leave Count Against Me At Work?

An important thing to remember about FMLA leave is that it is protected leave. This means that it is unlawful for an employer to terminate or retaliate against an employee for utilizing the leave. However, an employer is allowed to terminate an employee who falsely files for FMLA leave or who misuses their FMLA leave. So does going on a vacation while On FMLA leave count? It turns out- possibly.

A perfect example of a misuse of FMLA leave can be found in the case of Dunger v. Union Pacific Railroad Company (C.D. Calif. 6/3/19). In the Dunger case, the employee filed for medical leave for his hiatal hernia and gastroesophageal reflux disease. These conditions caused Thomas Dunger to suffer severe abdominal pain and nausea. These symptoms would flare up once or twice a month and were certainly legitimate reasons to take intermittent FMLA leave. In October 2017, Dunger had a flare-up of his medical conditions that caused him to call off work for October 19, October 20, and October 21. The problem was that before his conditions flared up Dunger had planned a fishing trip with some of his friends and a coworker for October 21. Despite using his FMLA leave to call off work that day Dunger decided to go on the fishing trip with his friends. To make things even worse one of Dunger’s coworkers took a video of the fishing trip and posted it to Facebook! Here is a tip for you, if you call off of work because of severe abdominal pain, don’t go out on a boat and engage in an activity that requires the use of your abs, and do not post a video of it to Facebook! One of Dunger’s co-workers showed a manager the video of Dunger fishing while he was on FMLA. No surprise Dunger’s employer promptly fired him for improper use of FMLA. Dunger sued his employer, claiming that he was terminated in retaliation for using FMLA leave. The court granted the employers motion for summary judgment holding:

Plaintiff argues that he has brought evidence showing he was not actually acting in a manner inconsistent with his serious medical condition by going on the fishing trip, nor was he dishonest in taking FMLA leave because his boating trip did not conflict with his work shifts. However, none of that evidence supports an inference that UP impermissibly used Plaintiff’s taking of FMLA leave as a factor in the decision to terminate Plaintiff. Even if Plaintiff was able to successfully identify flaws in UP’s reasons for Plaintiff’s termination, Plaintiff has provided no basis to infer that UP relied on anything other than Plaintiff’s dishonesty, which is a lawful basis for termination, in terminating him.

Can Employees Go On Vacation While On FMLA?

Right about now you are probably thinking something
along the lines of “does this mean if I take FMLA leave I can’t leave my
home?” The answer is no. Having a condition that requires you to use FMLA
leave does not mean that you have to be bedridden whenever you use the leave.
What is important is that you are honest with your employer and don’t abuse
your use of FMLA leave. While this does not guarantee that your employer will
not retaliate against you for using your FMLA leave it does go a long way to
show that your employer did not have a legitimate reason to terminate you. A
perfect example of this is the case of Richard A. DaPrato, vs. Massachusetts
Water Resources Authority
(Mass S. Ct. 2019).

In DaPrato the
employee was approved for FMLA leave to have a tumor removed from his foot.
DaPrato was approved for FMLA leave from February 6, 2015, through March 26,
2015. On March 12, 2015, DaPrato went on a vacation to Mexico with his family.
DaPrato took this vacation every year and had told his supervisors about his
plans multiple times both before and during his FMLA leave. While he was on
vacation DaPrato said that he limited the kinds of activities he engaged in
because of his medical condition. However, when the Human Resources department
of DaPrato’s employer discovered that Daparto was on vacation in Mexico, they
immediately launched an investigation. According to the head of HR, she started
the investigation into improper FMLA use because she didn’t think someone
“who’s seriously ill or disabled would be able to be on a vacation.”
During their investigation, the Human Resources department discovered a video
of DaPrato walking, driving, and putting luggage in his car. (Again, if you are
not going to be at work don’t post about it on social media!) It is important
to note that all of these activities were consistent with the limitations
described in DaPrato’s FMLA leave forms.

After he returned from his vacation, DaPrato was
terminated for allegedly misrepresenting his disability and need for FMLA
leave. DaPrato filed a lawsuit against his employer, claiming that they
unlawfully retaliated against him for using FMLA leave. The Supreme Court of
Massachusetts found in DaPrato’s favor, holding:

We clarify today that an employer may validly consider an
employee’s conduct on vacation — or, for that matter, anywhere — that is
inconsistent with his or her claimed reasons for medical leave when the
employer has such information at the time the employer is evaluating whether
leave has been properly or improperly used.

Here, DaPrato took FMLA leave to allow his foot to
recover fully from surgery. Such recovery could take place in a warm climate as
well as in a New England winter. That being said, vacationing while on FMLA
leave may take either permissible or impermissible forms. An employee
recovering from a leg injury may sit with his or her leg raised by the sea
shore while fully complying with FMLA leave requirements but may not climb
Machu Picchu without abusing the FMLA process. Careful consideration of the
reasons for the medical leave and the activities undertaken, including the
timeline for rehabilitation and recovery, are required to determine whether
FMLA leave has been abused…

The HR director’s statement that she considered all
vacations while on FMLA leave impermissible was incorrect as a matter of law.
Importantly, DaPrato’s FMLA leave certification forms described his foot as
steadily recovering, with weight bearing allowed, indicating he could engage in
some activity on vacation.

The big takeaway from today’s blog is that your
life doesn’t end if you have to use FMLA leave. You don’t have to be bedridden,
and you can even take trips, within reason of course. Be honest, inform your
employer if you had any vacations or trips planned for the time you will be
using FMLA leave. Be smart, don’t do things at home or on vacation that your
FMLA forms say you can’t do at work. Don’t post to social media about all your
vacation excursions while on FMLA. Be ready, just because your employer
shouldn’t retaliate against you for using FMLA leave doesn’t mean they won’t.
If you feel that your employer is trying to terminate you because you used FMLA
leave you need to call
the right attorney

Can Employees Go On Vacation While On FMLA?
Do you believe Employees should go on Vacation while on FMLA?

Having a condition that requires you to use FMLA leave is difficult enough without worrying about the effect it may have on your job. If you have used protected leave under the FMLA and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Even if you took a vacation while on FMLA leave. Call our office at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employee’s rights under the Family Medical Leave Act.


This employment law website is an advertisement. The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Can Employees Go On Vacation While On FMLA?”, “how do I get medical leave under the FMLA?”, “what are my restrictions while on FMLA”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “can I go on scheduled vacations during FMLA Leave”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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