Employer Pays $1.3 Million for Firing Employee Who Took Vacation While on FML

August 27, 2019 • Cheryl Hoover

Employer Pays $1.3 Million for Firing Employee Who Took Vacation While out on FML

A recent decision from the highest court in Massachusetts emphasizes the risk employers take on employment actions based on outrage or emotion rather than reasonā —particularly when it comes to decisions about leave of absences. In this case, an employee sued his former employer after he was fired for taking a vacation to Mexico while he was on a family medical leave (FML) of absence.

The employee provided proper medical certification from his surgeon that he would need between four and six weeks of FML after foot surgery and would need to wear a medical boot before transitioning to weight-bearing activities. The employee tried to return to work early to avoid exhausting his allotted vacation time but was not allowed to because he could not obtain certification to return to work. When the employee discovered he would be unable to return from leave without exhausting his vacation time, he requested to be paid under the employer’s salary continuation plan. 

During the last few weeks of his FML, the employee went on a previously scheduled vacation to Mexico, a trip he took annually and that was scheduled well in advance of his leave. When he noticed that he did not receive accurate pay according to the salary continuation policy, he contacted the HR director. Upon learning the employee had taken a vacation while on FML, the HR director launched an investigation and forwarded the employee’s e-mail to an HR manager stating, “Is he serious?” to which the HR manager replied, “OMG.”

The employee explained that he tried to return to work early, that he was wearing a boot according to doctor’s orders, and the activities he participated in while on vacation were consistent with the limitations described in the medical forms from the surgeon. Despite this information, and despite not sharing the employee’s FMLA forms with senior management, the HR director recommended the employee be terminated.

At the trial, the state supreme court explained that an employer may consider an employee’s conduct on vacation to determine if leave has been properly used. If the conduct is consistent with the medical leave, the employee can recover at home or on vacation. In this case, the employee could recover from his foot surgery with his leg raised up by the seashore in Mexico while fully complying with the FMLA requirements but climbing Machu Picchu would be abusing the FMLA process. 

The key takeaways from the decision are that employers should refrain from making knee-jerk decisions relating to FMLA based on what initially might seem to be employee abuse of leave. Decisions to terminate employees should be based on a reasonable review of the facts, including all medical information provided.

Finally, managers should be very careful regarding the information they share in e-mail exchanges. Sending a message based on an initial reaction can return to haunt the organization, as the emails did in this lawsuit.

Read the full SHRM article. For more information on the FMLA, see the HR Library.


Cheryl Hoover is an HR consultant at TASB HR Services. Send Cheryl an email at cheryl.hoover@tasb.org.


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Tagged: ADA, "Americans with Disabilities Act", "Family and medical leave", FMLA, Leave, Termination