Yes, you can punish fraudulent FMLA leave

If you are sure an employee has been misusing FMLA leave or submitting fraudulent information as part of her FMLA leave request, don’t fear punishing her. An employer’s honest belief that a worker is taking leave she isn’t legally entitled to can’t be the basis for a lawsuit over FMLA benefits or for retaliation.

Recent case: Deborah, who worked as a school nurse, submitted an application for intermittent FMLA leave so she could take care of her daughter. The girl has severe rheumatoid arthritis, and Deborah had to take her to physical therapy sessions. Her request was approved after she provided information from her daughter’s physicians stating that Deborah had to take the child to sessions every Monday and Wednesday.

From approval in August through the end of the year, Deborah took Mondays and Wednesdays off as intermittent FMLA leave.

Then, Deborah submitted a tuition reimbursement request for a clinical nursing program she had attended during the fall and early winter months. That spurred an investigation that revealed that Deborah had been taking classes on Mondays and Wednesdays. She had previously requested leave to complete the program and had been turned down shortly before she submitted the FMLA intermittent leave request.

When confronted, Deborah admitted she hadn’t taken her daughter to therapy, allegedly because the child refused to go.


She was terminated and sued, alleging she had been punished for submitting an FMLA request.

But the court tossed out her lawsuit. It reasoned that her employer had a reasonable belief that her request was fraudulent and therefore didn’t have to provide any FMLA benefits, including reinstatement and payment of medical benefits. She also couldn’t allege retaliation. (Alexander v. Board of Education, No. 15-1959, 2nd Cir., 2016)