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Headaches Cause FMLA for Indiana Employee—and Visa Versa for the Employer

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Migraine headaches can be serious business—sometimes requiring FMLA leave. But what if you discover that your migraine-suffering employee used her FMLA time to cut lawns at her side job? An Indiana employer facing that situation recently handled that situation aggressively—and legally …

Case In Point: Diana Vail worked the third shift (11 p.m. to 7 a.m.) at an auto parts manufacturing plant. Vail sometimes suffered from migraine headaches that, she said, “crept on her with short notice.” When they’d occur, she’d call a supervisor and say she was taking FMLA leave.

The company knew that Vail’s husband owned a lawn-mowing business and that she worked for him on a part-time basis. The company also noted that her FMLA requests increased during the summer hours when her husband’s services were in peak demand.

So, the company hired an off-duty police officer to follow her. It suspected she was abusing the intermittent leave and was, in fact, healthy enough to work for her husband.

During one of Vail’s migraine-induced FMLA leaves, the investigator observed Vail mowing the lawn of a husband’s customer. The company fired Vail because it had an “honest belief” that Vail was not using her leave for its intended purpose.

Vail sued, claiming her employer unlawfully interfered with her FMLA rights. For Vail to prevail on an FMLA-interference claim, she must prove that she used her FMLA leave “for the intended purpose of the leave” and that her employer took negative action against her because of the leave. (Vail v. Raybestos Products Co., 7th Cir., 7/21/08)

How did the case end and what lessons can be learned?

The trial court tossed out Vail’s lawsuit. She appealed. But the appellate court wouldn’t budge, saying the employer didn’t violate Vail’s FMLA rights because it was clear that Vail was “gaming her leave in order to work for her husband’s business.” The court agreed that the employer had a legitimate “honest suspicion” that Vail was using FMLA medical leave to mow lawns and was seemingly able to perform her job duties at the plant.

3 Lessons Learned Without Having to Go to Court

1. Be consistent. Apply your FMLA policy consistently to avoid discrimination lawsuits. In this case, the employer granted the leave consistent with its policy.

2. Collect proof—don’t just make assumptions. In this case, the company didn’t just assume that Vail was working for her husband because of the connection between her FMLA requests and his busy season. It showed the court clear evidence of her side job. And the court relied heavily on those surveillance reports (which probably gave the employee another migraine, too).

3. Set a “no moonlighting on leave” policy. If you have a uniform company policy that prohibits employees from moonlighting during any kind of leave, you also can ban employees from working during FMLA leave. The key: Apply this rule consistently. Ban moonlighting during all types of leave, not just FMLA leave. That doesn’t mean you have to ban moonlighting for all employees at all times.

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