‘She’s taking leave where?’ Firing for FMLA abuse leads to lawsuit

Behold the perils of dealing with the FMLA in the Golden Age of Employment Litigation: After clearly catching its employee in the act of FMLA leave abuse, this employer still got sued. 

Cue the groans. But hold on, this story has a happy ending … for employers.

Lucy Fitterer worked for the State of Washington Employment Security Department and had been granted intermittent FMLA leave periodically throughout her employment to help her deal with migraine headaches.

As a result, nothing seemed out of the ordinary when she requested two weeks of FMLA leave in January of 2011.

Then, through the grapevine (i.e., Fitterer’s step father mentioned it to one of her co-workers), the employer found out that Fitterer and her husband were planning to use her FMLA leave to slip away for two weeks on a cruise.

As a result, HR reached out to her doctor to verify her need for FMLA leave (warning: failing to get the employee’s permission to do this could also get you sued).

What did the doctor say? He said Fitterer was not incapable of working during the time she would be on FMLA leave. He also indicated she wasn’t seeking treatment while on leave.

So when Fitterer returned to work, her welcome-home present was a pink slip. She’d been fired, and a stated reason for her termination was a violation of the company’s leave policy — a.k.a., FMLA abuse.

Is that interference?

Following her termination, Fitterer sued claiming FMLA interference.

Thankfully for employers everywhere, the court quickly dispatched Fitterer’s lawsuit and ruled her termination should stand.

In explaining its ruling, the court said Fitterer had no evidence that she was incapacitated during her two weeks of leave, and there was no evidence that the two-week cruise was necessary to deal with her medical condition.

This is a good sign that courts won’t put up with FMLA abuse, either. Plus, it shows courts will back your punishment of leave abusers when you can build a strong enough case against them — as this employer did, not by making assumptions about Fitterer’s leave, but instead by seeking clarification from her doctor.

Cite: Fitterer v. State of Washington Employment Security Dept.