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Can My Job Conduct Surveillance While I’m Out On FMLA?

by | May 9, 2022 | Employment Law, Family Medical Leave Claims, Federal Law Update, Wrongful Termination |

Our medical leave attorneys recently blogged about the use of the Family and Medical Leave Act (“FMLA”) to care for a child’s serious medical condition. (Best Law Read: How Do I Use FMLA To Care For My Child?). A recent case out of the United States Court of Appeals for the Sixth Circuit addresses the employer’s ability to ferret out employees who are misusing FMLA leave. In VanHook v. The Cooper Health System, No. 21-2213, 2022 WL 990220, at *1 (3d Cir. Mar. 31, 2022), Marsha VanHook worked as a patient representative at Cooper Health starting in 2010. VanHook experiences depression, anxiety, panic attacks, and related symptoms, and her son experiences attention deficit hyperactivity disorder, severe oppositional defiance disorder, chronic depression, and anxiety. As a result of her son’s condition, he needs constant supervision and regular medical care. In 2013, Cooper Health approved VanHook for FMLA intermittent leave to care for her son when he was not in school or otherwise supervised.

Keeping in mind that the FMLA provides 12 weeks of unpaid leave, which for intermittent FMLA leave is broken down into 480 hours (or 60 eight-hour shifts), VanHook took FMLA leave totaling 69 days in 2015, 90 days in 2016, and 106 days in 2017. Cooper Health allowed the additional time without a problem or complaint of any kind until December 27, 2017 when VanHook sought 10 additional days of paid time off (PTO), which resulted in a warning for absenteeism.

Shortly thereafter, another employee reported that VanHook “may not be using her leave as expected or as appropriate.” When Human Resources (HR) looked closer at VanHook’s time intermittent FMLA use, it observed a pattern of VanHook using FMLA leave “very frequently … in conjunction with a weekend or a day that she had already requested off.” By the end of March 2018, VanHook had already used over 150 hours of intermittent FMLA leave that year.

The United States Court of Appeals for the Sixth Circuit described what happened next:

Cooper hired a firm to conduct surveillance on VanHook over three days when she was on FMLA leave. On February 12, 2018, VanHook stated that her son was not having a “good day,” but she was observed driving to Dunkin’ Donuts and Walmart, picking up her other son from school, and exercising at L.A. Fitness, all without her son. There was no indication that a tutor or therapist was temporarily at the house, permitting her to leave briefly. On February 19, 2018, she was observed at L.A. Fitness, ShopRite, and Target with her other son, again, with no indication of a need to care for her child. On March 9, 2018, VanHook took FMLA leave for the stated reason that she needed to take her son to doctor’s appointments, but that son was observed boarding a school bus, and VanHook was observed driving her other son to a medical appointment and then to two stores.

Id. at *2.

On March 21, 2018, Cooper HR and managers met with VanHook and explained that they had surveillance footage of VanHook during her use of intermittent FMLA leave and offered to show it to VanHook, who immediately decline and attempted to turn in her badge. For some reason that I cannot figure out, Cooper Health opted to decline the resignation in order to fire VanHook for FMLA fraud.

Having been fired, VanHook promptly sued Cooper Health for FMLA retaliation as well as other related claims.

The United States Court of Appeals for the Sixth Circuit got rid of the wrongful termination claim rather quickly:

“Where an employer provides evidence that the reason for the adverse employment action … was an honest belief that the employee was misusing FMLA leave, that is a legitimate, nondiscriminatory justification for the discharge.” Capps, 847 F.3d at 152. VanHook maintained that she must provide constant care for her son. … The surveillance confirmed Cooper’s reasonable suspicion and provided the basis for an honest belief that VanHook was abusing FMLA leave, and she was terminated.

Id. at *3 (footnotes omitted).

So, VanHook got creative and argued that Cooper Health engaged in unlawful retaliatory conduct when it initiated the surveillance without a reasonable belief of misconduct. The United States Court of Appeals for the Sixth Circuit shot this one down quickly too:

First, “[n]othing in the FMLA prevents employers” from monitoring employees’ activities while on FMLA leave “to ensur[e] that [they] do not abuse their leave.” Callison v. City of Phila., 430 F.3d 117, 121 (3d Cir. 2005).

Second, even if Cooper needed “reasonable suspicion” to conduct the surveillance, Cooper had a reasonable basis to suspect that VanHook was abusing her FMLA leave. Mannino noticed early in the year that VanHook’s total FMLA leave might exceed her yearly allotment. HR learned that VanHook frequently used FMLA leave “in conjunction with a weekend” or a day on which she was using non-FMLA leave. App. 457:8-9. A coworker reported that VanHook was using FMLA leave for reasons different from those she gave Cooper. Based on this information, Cooper ”hir[ed] a private investigator to ensure that the FMLA [leave] was being used appropriately.” Thus, Cooper’s decision to start an investigation was reasonably based on suspicions that VanHook may be abusing the FMLA.

Id. (citations to the record omitted).

Now, if an employer sent surveillance out after an employee used a normal amount of leave and there was really no reason to suspect abuse, the case may have been a little different. Maybe not.

But the moral of the story is that given the number of phones with cameras and people out there willing to report misconduct, if you lie about the reasons for taking FMLA leave, don’t sue when you get caught.

What should I do if the company that I work for wrongfully fired me after I used FMLA leave?

Best FMLA Lawyer Answer: Now that you have started to research your rights, you understand how complicated your Family Medical Leave Act (FMLA) rights are. One misstep could cause you to lose your claims. To give you the best change to properly enforce you legal employment rights, call the right attorney to schedule a free and confidential consultation. There is no risk talking to a lawyer. (Read: What is the Spitz No Fee Guarantee?) So, call our top attorneys in Cleveland, Cincinnati, Columbus, Toledo, Youngstown and Detroit. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment law. Our lawyers will be here to get you the FMLA leave that you are entitled to or fight to get you paid for being wrongfully fired.


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