Jon Hyman on the Eleventh Circuit case of Jones v. Gulf Coast Health Care:
Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.
So, what do you do?
Fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave.
Tread lightly, however, before making that decision, for in Jones v. Gulf Coast Health Care, the 11th Circuit Court of Appeals concluded that based on these same facts, Rodney Jones was entitled to a jury trial on his FMLA retaliation claim….
Full story here.
8 Comments
Without looking at details I’d think this is obviously correct. Whether the employee will win is a different matter, but the firing may not be justified based on the facts and circumstances, which a jury can review.
So you must remain within x distance of home during recovery? Or is it simply the nature of the injury? Could I for example, after one of my open heart surgeries, go to the beach some day? Could I sit there in the sunshine while my family played in the water? For my first surgery, the hospital where it occurred was over four hours away from my home. So obviously I could travel four hours… As long as he wasn’t doing anything obviously problematic for someone with that sort of issue, what is the problem? After all, certain classes of injuries don’t put you flat on your back in bed unable to move for any purpose. I seem to recall having gone to a movie after one of my ankle fusion surgeries, complete with wheelchair. Should my employer fire me for having dared to actually do something entertaining during my absence? Was it my fault that the theater was wheelchair accessible but that the bld I worked in on the second floor wasn’t? Also, I can watch a movie while on 20mg of Demerol, not sure that I could make wise decisions…
Now, back to the nature of the injury… My examples were clearly established (post surgical in both cases), where the rotator cuff is one of those medical mysteries… or could be. My only point is that if you are burning your leave, or taking time without pay, for a legitimate medical purpose, you don’t have to act like you’re handcuffed to the bed or a guard which escorts you from home to the doctor and back. So, I agree, it should be up to a jury of his peers to hear the nature of the medical issue, how limited or extreme the activity was and make a determination on the appropriateness of the activity.
p.s. The beach in question was 19 miles from my front door. Anyone who has had open heart surgery should be able to attest that it is easier to sit than to lie flat. The real pain comes in during the transition from sitting to standing and vice versa. They don’t even let you sit around and do nothing in the hospital, for me they had me move from the bed to a chair within 5 hours of coming out of surgery and walking the halls within a couple days.
“….the employee’s co-workers saw the photos and ratted him out to management.”
The ‘crime’ perhaps is that this gentleman probably left his co-workers with extra work to pick up, then erred in his judgement to share with them what many might have considered a dream vacation.
Depending on the composition of the group, number of co-workers, and availability for replacements, his peers might have felt screwed. If so, then the employer might have felt some pressure to create a sense of justice for those not able to enjoy the caribbean getaway.
If the guy was doing something inconsistent with having a rotator cuff problem, like playing volleyball, then they would be justified in firing him. Otherwise, there is absolutely no reason that he should not go to the beach to recover from his surgery. In fact, his doctor might well have recommended warmth, modest physical activity not involving the injured shoulder, and floating around.
Mistake 1) How is it the business of the employer what the employee does on their time off? There must not be too much work to be done if the employer or employees have to cruise facebook during business hours.
Mistake 2) Having a social media account and posting your personal business is perfectly legal but just as destructive as speaking to the police conducting an investigation. The information once out there can never be retracted, will certainly be taken out of context and manipulated to be used against you and will never be used in your favor. This is just like the courtroom so the best legal advice remains to keep your personal business to yourself and your mouth shut.
As the business is paying for the man not to be working or paying for others to pick up the slack and or also paying for another person to take his place, I think there is a legitimate concern as to what the man is doing Some people and jurisdictions may call if “fraud.” Secondly, what makes you think that the employees were cruising Facebook on work hours? Are you saying that people only would see a post from someone during work hours and not on their own time?
To me the real problem with the case is that according to the decision, the man wanted to come back to work. His job required mostly desk work and some light lifting. His doctor would give him a release for light duty and no lifting until he had completed more physical therapy / rehab.
The company wouldn’t accept that and only would allow him to return if he had a medical release to return to full duty. In a way, the company put themselves in a position where they were restricting the man’s return to work and not the employee’s desire to return to work.
(One wonders if that is because of “overlawyering” interests as well as the company doesn’t want to liable for another injury while on the job where the mac could claim he was pressured into doing something he wasn’t yet medically cleared for.)
To me, if the pictures show the man doing things that he and his doctor claim he could not do because of the injury, the company has every right to fire him on the basis of lying and fraud.
If the man was still within the medical protocol his doctor had prescribed, that’s a different story. (Although on some level, one would think that in a right to work state like Florida, companies should have the right to hire and fire people at will.)
>(Although on some level, one would think that in a right to work state like Florida, >companies should have the right to hire and fire people at will.)
And they would if not for the FMLA which basically makes an employer prove a termination while on an FMLA is “reasonable” and “non-discriminatory”. Under the described circumstances that might not be easy for the employer…
“Although on some level, one would think that in a right to work state like Florida, companies should have the right to hire and fire people at will.”
Agreed, but the problem is the case is based on federal law (FLMA) not state law, so Florida being a right to work state isn’t relevant to the case.
As to letting him come back on light duty, Company policy is you have to have a medical release before coming back from medical leave. The plaintiff wanted permission to come back on light duty from the company before seeking a restricted light duty release from his doctor.
The circuit court decided that issue in the companies favor.
On his firing, the company introduced a whole bunch of policy violations besides the fraudulent use of FMLA leave, but only after he was fired. Quite frankly that looks bad and raises enough doubt about the company’s opinion of the strength of the disability fraud issue to merit a trial on that issue.