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Using FMLA leave to build a porch: Can that be legal?

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in Discrimination and Harassment,Employment Law,Firing,FMLA Guidelines,Human Resources

by Mindy Chapman, Esq.

Have you ever approved FMLA leave for an employee’s medical ailment but had a sneaking suspicion the time would be spent on more than bed rest?

If you discover “creative” uses of FMLA leave, be careful not to pull out the “You’re Fired!” finger too quickly or you may find yourself in the center of an FMLA retaliation lawsuit.

Case in Point: James Weimer, a Honda assembly line worker, suffered a concussion after a co-worker slammed a car trunk lid on his head. The company doctor ordered Weimer off work pending a specialist’s exam. Weimer asked for FMLA leave and received it.

Weimer was cleared to return to work on March 15 but came back on the 16. Honda, acting on a tip, videotaped Weimer on March 15 building a front porch on his home.

Honda fired Weimer for dishonesty and abusing his FMLA leave. Honda asserted that it didn’t fire Weimer for exercising his FMLA rights, but rather for staying on it too long when he no longer needed it. (The FMLA says that employees can “lose the protections of the FMLA when he or she does not use the leave for its intended purpose.”)

Weimer shot back with an FMLA retaliation lawsuit, arguing that he thought he had to wait for Honda’s doctors to clear him to return to work.

Result: The court sided with Weimer, refusing to grant summary judgment to Honda. The court said there was a legitimate dispute whether Weimer’s injuries prevented him from fulfilling his job description even though those same injuries may not have prevented him from building a porch. (Weimer v. Honda of Am. Mfg. Inc., SD OH)

2 lessons learned

1. Don’t trip over the red tape. Firing employees while they’re waiting for your corporate red tape to untangle can look like retaliation.

2. FMLA-leave takers don’t have to stay in bed. Many courts have said FMLA-leave takers can engage in activities that are unrelated to the medical time off. So, if you see an FMLA-leave taker at the movies or mowing the lawn, don’t automatically assume they’re abusing leave. They still may be receiving treatment for the part of their body needed for work, but not the part needed for play.
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Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book,
Case Dismissed! Taking Your Harassment Prevention Training to Trial.

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