NO FMLA VIOLATION: Fired for Attending Octoberfest while on FMLA Leave.

The Sixth Circuit Court of Appeals [covering Tennessee, Kentucky, Ohio, Michigan] upheld the employer’s termination of an employee out on FMLA leave who was seen by several other employees at Cincinnati’s Octoberfest celebration. The employee was fired for medical fraud under a paid leave policy while also on FMLA leave. Seeger v. Cincinnati Bell Tel. Co.
The employee was out for a herniated disc and his doctor had opined that he was unable to perform even light duty work.
The employee, however, was seen walking ten blocks to the Octoberfest and drinking beer while standing around. H.R. investigated and on appeal was attacked as having performed an inadequate investigation.
The Sixth Circuit found that, although the close proximity in time between the FMLA leave and termination was sufficient to establish a prima facia case of retaliation; the Company had articulated a legitimate business reason for the termination and there was insufficient evidence of pretext to survive summary judgment in favor of the employer.
An employee on FMLA leave may be terminated for violating the more stringent requirements of a concurrent paid leave policy, as long as that policy is “reasonable and neither conflicts with nor diminishes” the FMLA’s protections.
The investigation was thorough and in good faith. The employer was reasonably informed. The employee did not refute the employer’s honest belief that the inconsistent facts before it were the result of fraud by the employee.

Every case must be viewed individually, but Employers should take heart that their investigations of FMLA violations need not be perfect in order to be upheld.

                                                                                                       By Don Benson

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