This post has nothing to do with Netflix and its new, generous parental leave policy.  Or GOP presidential candidate Carly Fiorina’s latest position on paid leave. Sorry to disappoint.

But it does involve an exotic boat cruise. And of course, the FMLA. Tantalizing? Jump aboard the Love Boat to find out…

The Facts

Lucy worked for the State of Washington Employment Security Department.  During her employment, Lucy suffered from and was given intermittent FMLA leave for migraine headaches, a condition which is covered by the FMLA.  The following year, in January 2011, Lucy submitted a doctor’s note excusing her from work for a two-week period for “FMLA vacation,” presumably because of her migraines.

Per the plan, Lucy headed off a few weeks later on a two-week boat cruise.  Her excursion flew under her employer’s radar until her step-father (huh!?!) unwittingly shared the news with Lucy’s co-worker that Lucy and her husband were spending two weeks away on the Love Boat.  This drew the employer’s skepticism about Lucy’s need for FMLA leave (and likely some expletives, too).  As a result, the employer reached out to Lucy’s doctor directly, expressed “some concern” about the two-week vacation and posed a number of questions to Lucy’s doctor about her medical condition.

The doctor failed to timely respond, and when he finally did, he indicated that Lucy was not incapable of working during the time she was on the cruise.  After her termination, however, Lucy’s physician sent another note to her employer stating, in part:

A common medical practice, which I followed, was to see if a break from the problem for a few weeks would ameliorate [her migraines] . . . I found that the separation did alleviate the problem, by the second week the headaches has dissipated and she was recharged, anxious to return to work . . . .

Lucy was anxious to return to work, I’m sure.

Waiting for Lucy upon her return to work was a 12-page termination letter citing six different reasons for her termination. [Apparently, someone wanted to ensure this termination would stick.] Among other reasons, the Department terminated Lucy’s employment because she “inappropriately and in violation of agency policy took a pre-arranged cruise,” which was not related to the FMLA.

A termination decision that makes perfect sense.

The Ruling

After her termination, Lucy filed an FMLA interference claim, but she needed far more than a life preserver to save her claim.  The court quickly dismissed her FMLA lawsuit, finding that: 1) Lucy presented no evidence that actually she was incapacitated from working while she was gone from work; and 2) there was no evidence that a two-week cruise was medically necessary to deal with her migraines. Notably, the doctor’s response indicated that he did not consider Lucy incapacitated during the two-week period and that he was approving “FMLA vacation” time simply because Lucy told him she had vacation time available to her.  These admissions undermined Lucy’s FMLA claims, effectively leaving her stranded at sea. Fitterer v. State of Washington Employment Security Department

Insights for Employers

A few useful takeaways for employers here:

1.  Some time back, one of my clients was wrestling with a similar situation — a doctor who submitted a note approving a trip to Disney World to alleviate her stress, which was causing her to miss work.  [Not that there’s anything wrong with Disney — it’s a most magical place!]  My client ultimately relented, ultimately allowing the employee to take the trip and not contesting its medical necessity.  This decision gives employers in my client’s situation the courage to stand up to situations like these.  In short, if the employee is not incapacitated and is not seeking treatment wherever she is heading, her absences do not trigger the FMLA, and they should be treated as such.

2. Use the FMLA tools available to you to obtain more information about the medical condition and the certification.  Here, it seems apparent that the employer did not ask any follow-up questions when it received a doctor’s note excusing Lucy for “FMLA vacation.”  Some basic questions come to mind: What’s the reason for a two-week “FMLA vacation”? Will she be unable to work during this time period?  Will she be seeking treatment?  The employer asked these questions only after it learned that she was on a cruise. In some situations, however, this might be too late.

3.  Be extremely careful about contacting the employee’s health care provider directly without the employee’s permission.  Under the FMLA regulations, employers may contact a health care provider directly only to authenticate or clarify certification.  Here, the employer arguably was clarifying Lucy’s certification and need for FMLA leave, a communication that must have been approved first by Lucy (through a HIPAA-complaint release).  It seems here that the employer committed a technical violation of the FMLA in reaching out to Lucy’s physician without her permission which, in turn, could have undermined its defense against Lucy’s FMLA claims. Don’t make this mistake — clarifying certification must be approved by the employee in advance.

4.  With number 3 above in mind, I still admire the employer for informing the physician of their “concern” about whether Lucy’s cruise was consistent with her need for FMLA leave and asking him to answer a series of questions about Lucy’s medical condition (all within FMLA bounds assuming they first obtained her permission to do so).  I encourage my clients to use similar terminology and questions to discuss suspected FMLA abuse with an employee’s health care provider, as it suggests that the employer is taking the employee’s absences/patterns seriously and that it’s not a situation to be taken for granted.

Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.


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