What am I allowed to do while on FMLA leave?

I have had to be out of work on FMLA twice this year at my doctor’s direction for a medical condition. The last absence was for 3 days; during one of the 3 days my daughter had an important competition that I went to for an hour. My director knew that I had attended the competition and gave me a written reprimand for excessive absences, use of leave and unapproved leave. Is that allowable under FMLA?

Posted  09-19-2012

Ann Kiernan replies:

I am afraid I can’t tell you, since you have not told me what your doctor’s restrictions are, and whether or not your company’s policy required you to stay at home while you were on medical leave. What I can do is tell you about some recent cases involving similar situations.

In Colburn v. Parker Hannifin, 429 F. 3d 325(1st Cir. 2005), the employee was fired after he had told the company he was out on intermittent FMLA leave with a migraine, but he was seen going to the gym, renting videos, and driving around running various errands, including buying pretzels and a six-pack of beer. Finding that “his actions were inconsistent with those of someone experiencing an incapacitating migraine”, the federal appeals court affirmed summary judgment in favor of the employer, holding that no reasonable jury could conclude that the employee was fired in retaliation for his exercise of FMLA rights

Another employee had rheumatoid arthritis, and arranged to take intermittent FMLA. One day, she left work early because her hand was swelling and she was having trouble using her keyboard and mouse. On the way home, she stopped at a store to buy a gift for a co-worker’s baby shower the next day, where she bumped into two other co-workers. She called in sick on the following day, and that evening, she was again seen shopping by one of her co-workers. She called in sick the following day as well. When she returned to work on the third day, she was given the choice of resigning or being fired for misusing FMLA. The court concluded that a reasonable jury could find that she was unable to do her job when she left work, but that she was capable of stopping at a store on the way home, stating: “The FMLA contains no requirement that an individual on intermittent medical leave must immediately return home, shut the blinds, and emerge only when prepared to return to work.” Jennings v. Mid-America Energy Co., 282 F.Supp.2d 954 (S.D. Iowa 2003).”

In a third case, Callison v. City of Philadelphia, 430 F. 3d 117 (3d Cir. 2005), the city’s policy required employees on sick leave to remain at home except to go to the doctor, pharmacy, lab, or otherwise attend to their illness. On two separate occasions, the employee took FMLA leave but left his home without calling in. The employer called him at home, but the employee did not answer. The employer suspended the employee, who in turn sued, claiming that the policy interfered with his FMLA leave rights. The appeals court upheld the city, saying: “Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.”

So, as you can see, the answer to your question depends on whether attending your daughter’s event was inconsistent with the medical reason you took FMLA and whether your employer’s sick leave policy allowed you to leave home for such an event. I hope this analysis has been helpful.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2015-06-10T06:30:42+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.