Can a person on FMLA be fired for going to a hair salon?

Can a person on approved FMLA for depression and anxiety be discharged for calling in FMLA on a 6am-2pm shift and being filmed going to get her hair done at 130pm? It is reasonable to think she could be incapacitated in the a.m. hours and feel better over 7 hours later. She also had a statement from her doctor stating the hair salon was actually therapeutic for her condition.

Rita Risser Chai replies:

The courts have been clear that an employer generally is not even allowed to conduct surveillance of an employee on FMLA unless they have a reasonable suspicion that the employee is abusing leave. Assuming for the sake of argument that they believed they had a reasonable suspicion, then they should have sought a doctor’s opinion about the therapeutic value of the visit. Her own doctor’s opinion can be contradicted if there is reason to believe the doctor is unreasonably supporting the patient. Bottom line, there are a lot of issues and it may be a good idea to seek advice from an attorney. Good luck.

Posted 06-19-2018

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.


About the Author:

Rita M. Risser Chai is the founder of Fair Measures. An attorney in California for 20 years and now an attorney in Hawaii, she authored the Prentice Hall book, Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits. She developed most of the curriculum used by Fair Measures, created the firm’s first website praised in HR Magazine, and wrote numerous articles on employment law including one on best practice harassment prevention training published in the magazine of the American Society for Training and Development (now ATD). She taught Law and Human Resources at the University of California, Santa Cruz, for eight years, and has presented four times at the annual conventions of the Hawaii Society of Human Resource Management.