by Maureen E. James, Esq.

The Family Medical Leave Act (FMLA) entitles eligible employees to take up to twelve weeks of leave during a twelve-month period because “of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D) (2012).  But what if during that leave the employee travels? Takes a vacation? Goes ice skating? Sails a boat while fishing? What does an employer do with that information?

The Massachusetts Supreme Judicial Court addressed this issue with a broad brush in Esler v. Sylvia-Reardon, finding that the mere fact that an employee has taken a vacation is not grounds for disciplinary action against them.  473 Mass. 775, 781 (2016). In Esler, the activities of the employee were never alleged to be inconsistent with the reasons for their leave.  So, what if the employer learned that the employee had taken vacation while on paid leave AND they engaged in activities which may be inconsistent with their condition?

In DaPrato v. Massachusetts Water Resource Authority, the Massachusetts SJC chose to take on a case that seemed to address that issue head on.  SJC-12651 (June 5, 2019). The case originated in Suffolk Superior Court and was brought by employee Richard DaPrato, who was terminated after years of unblemished service with the MWRA’s Information Technology Department.  The termination occurred after Mr. DaPrato took paid leave under the FMLA to recover from foot surgery. After he returned to work, the MWRA learned that Mr. DaPrato had travelled to Mexico during his leave. They reviewed video footage from one of their own parking lots and saw Mr. DaPrato lifting luggage in and out of a car, walking and driving on his way to and from the airport.  He was then interviewed by human resources and the information from that conversation was presented to senior management, along with a recommendation that he be terminated. After he was terminated, Mr. DaPrato took an early retirement and filed suit against his former employer.

How did this matter end up in litigation?  Mr. DaPrato’s suit alleged that he was terminated in retaliation for exercising his rights under the FMLA, which as a safeguard, contains provisions to protect employees from retaliation or discrimination based on the exercise of the FMLA’s substantive rights.  An employer may not, for example, “use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c). In this case, the SJC reiterated the broad point in Elser and further stated:

[w]e 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.  SJC-12651, 21 (emphasis added)

The Court noted that:

…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 the 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.  Id. at 21-22 (emphasis added).

In support of their position, at trial the MWRA also presented photographs of Mr. DaPrato fishing while on vacation.  The Court noted that although this evidence may show that Mr. DaPrato wasn’t entirely truthful in his FMLA request, it was not obtained by the MWRA during their investigation, nor was it considered before they made the decision to terminate him.  Further, when investigating Mr. DaPrato, the MWRA never reached out to his physician for further information regarding his rehabilitation, nor did they provide the FMLA forms to senior management so they could consider the video findings in light of the doctor’s written statements regarding Mr. DaPrato’s injury and path to recovery, specifically his transition to weight bearing activities and walking.

The Court found that the MWRA “did not know what [Mr. DaPrato] did on vacation in Mexico, just that he had gone on vacation to Mexico.  The HR director’s statement that she considered all vacations while on FMLA leave impermissible was incorrect as a matter of law.” Id. at 23.  So the MWRA made a mistake.  Unfortunately, the trouble for them did not stop there.  The jury’s verdict in Mr. DaPrato’s favor, even after review by the trial judge, came with a hefty price tag.  Mr. DaPrato was awarded $19,777 in lost wages or “back pay”, $188,666 in “front pay”, $200,000 for emotional distress, $715,385 in punitive damages, $208,443 in liquid damages, and $605,690 in attorneys’ fees and costs.

So, what can be learned from this decision and a $1.3 million dollar mistake?

• Vacations are not precluded as a general rule under the FMLA. Maintaining contact with employees before, during and after their leave regarding their condition is important to ensure that the employer is aware of all circumstances that arise during the leave.
  
• Context is everything! Should the employer learn of a potential red flag in a FMLA claim, reasonable discovery and evaluation of the facts surrounding the vacation while on leave are absolutely necessary BEFORE decisions are made, including factors such as the medical diagnosis, treatment plan, rehabilitation expectations, status of treatment and healing, activity level, actual tasks performed.
  
• Treat employees with respect. The FMLA has provided employees with health conditions certain rights. The failure to understand and properly adjudicate those rights can lead to verdicts with multiple damages, so employers should be prepared before issues arise.

If your business has questions regarding the Family Medical Leave Act, its provisions, or how to investigate a case of suspected abuse of the statute, please contact your labor and employment counsel.