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SJC Weighs in on Standard for FMLA Abuse

Written by: Charla Bizios Stevens

Published in NEHRA News (6/20/2019)

On June 5, 2019 the Massachusetts Supreme Judicial Court issued a decision in DaPrato v. Massachusetts Water Resources Authority, SJC-12651, 2019 WL 2364353 addressing directly the question of whether it was appropriate to terminate an employee for FMLA abuse based on his having taken a beach vacation while on an approved leave of absence.  

The plaintiff , Richard DaPrato, was an information technology manager at the Massachusetts Water Resources Authority (MWRA).  In January 2015, he told HR that he had to postpone a previously scheduled knee surgery, and instead take FMLA leave for an operation on his foot.  DaPrato took leave from his job from February 6, 2015, the date of the surgery, until March 26, 2015.  DaPrato saw that he would exhaust his sick time and vacation time before the end of his leave and therefore requested salary under a MWRA policy, which provides pay to managers who take FMLA leave due to a “serious health condition that prevents the employee from performing job requirements.”  HR only required an FMLA leave request form for him to apply for the benefit, and salary continuation was approved. 

On March 12, 2015, DaPrato went on a vacation to a beach in Mexico with his family. The trip had been booked well in advance, and his supervisor had already been informed of the date of DaPrato’s vacation. In early April, after DaPrato had returned to work, HR learned that DaPrato had gone on vacation to Mexico while on FMLA leave.  The HR director began investigating the propriety of DaPrato’s leave, and concluded that she did not think an employee “who’s seriously ill or disabled would be able to be on vacation.”  While investigating DaPrato’s leave, the HR director saw video recordings of DaPrato walking, driving, and lifting luggage out of his car during his FMLA leave.  In an interview with DaPrato, DaPrato explained that his conduct in the videos was consistent with the limitations described in his FMLA forms.  Yet, the interviewers did not review the FMLA forms, and did not check with DaPrato’s doctor to confirm DaPrato’s representations about his medical conditions.  The interviewers instead determined that DaPrato had misrepresented the disability for which he received FMLA leave and salary continuation, and his employment was terminated. 

DaPrato then brought suit against MWRA, alleging, among other things, retaliation under the FMLA.  the FMLA. To succeed on a claim of retaliation under the FMLA, an employee must show that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action. In this case, the third element was at issue in that the Court had to determine whether there was a causal connection between DaPrato taking FMLA leave and his termination from employment.   

The Court summarized its conclusions as follows:

Here, DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, 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 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. 

FMLA abuse has long challenged HR Directors and supervisors.  The most significant takeaway from the DaPrato case is that the facts of each case need to be reviewed carefully and in conjunction with careful review of the employee’s limitations as presented by his or her medical provider.  The court affirmed a $2 million verdict for the plaintiff because MWRA came to the wrong conclusion concerning possible abuse of the FMLA without taking into account all of the relevant information at its disposal.  The case is a stark example of why it is important to seek the advice of counsel before taking any action against an employee on FMLA leave.  

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