Is Vacationing in Mexico During FMLA Leave Grounds for Termination?

  • Jun 26, 2019
  • FMLA
  • Dennis J. Merley

An employee is approved for FMLA leave for pending knee surgery and the next thing you know he is vacationing in Mexico.  That’s just not right…or is it?

The Massachusetts Water Resources Authority (“MWRA”) approved Richard DaPrato’s request for time off under the Family and Medical Leave Act (FMLA) to undergo and recover from foot surgery. Upon returning from leave, DaPrato informed MWRA that he would need additional time off for knee surgery, a procedure he had postponed when the need for his foot surgery arose.

MWRA then discovered that DaPrato had taken a vacation to Mexico during the last two weeks of his leave for foot surgery.  Believing that it is impossible that an employee “who’s seriously ill or disabled would be able to be on vacation,” the employer launched an investigation and uncovered video of DaPrato walking, driving, and lifting luggage out of his car while on leave. Although DaPrato explained that these activities were consistent with his restrictions, the company terminated him for “[his] misrepresentation that [he was] unable to work…[his] receipt of extended salary continuation pay to which [he was] not entitled, and [his] failure to be truthful during [his] interview concerning these matters…”.

DaPrato sued for violations of FMLA, the Americans with Disabilities Act (ADA) and corresponding Massachusetts employment laws.

I’m Disabled But I’m Not Dead

At trial, DaPrato testified that he took this trip to a beach in Mexico with his family every year and had booked the arrangements well in advance.  Because of his foot issue, however, he limited his normal vacation activities to comply with the physical restrictions imposed by his doctor.  The employer sought to rebut this testimony in various ways, including showing the jury a picture of DaPrato standing on a boat holding a large fish that he had just caught.  At the conclusion of the trial, the jury ruled in DaPrato’s favor and awarded him close to $1.5 million in damages.

The employer appealed to Massachusetts State Supreme Court.  They contended that the judge unfairly blunted their defense of the case by instructing the jury that in deciding whether the employer terminated DaPrato for reasons unrelated to the ADA and FMLA, they could not consider the fact that he “took or requested leave or spent time recuperating in a particular location or in a particular manner.”

Employer Assumed Too Much

The Appeals Court disagreed with the employer and affirmed the jury award in DaPrato’s favor. They explained that while employers may take into account conduct on vacation (or other off duty behavior) in deciding that a leave has been fraudulently or improperly requested, they must view the evidence in its proper context and must have that information in their possession at the time the decision is made.  They then observed:

Here, DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.

The Appeals Court determined that the employer had not viewed DaPrato’s off-duty behavior in the proper context, that they leapt improperly to the conclusion that he had falsely obtained authorization for a leave of absence, and that the jury award in DaPrato’s favor was justified.  Their ruling emphasized the following points:

– The employer did not have the pictures of DaPrato holding the big fish when they decided to terminate so their use of those pictures at trial did not actually support their decision-making;

– Company officials admitted that they did not view off duty behavior in proper context by testifying that all vacations taken while on FMLA leave are impermissible.

– The company failed to take into account the fact that DaPrato’s medical certification indicated that he could begin to put weight on his foot such that the conduct captured by the video might not have been inconsistent with DaPrato’s restrictions.

Bottom Line

While it might be tempting in many cases to conclude that employees have faked their way into approved leaves of absence, employers should not draw that conclusion until a proper investigation has been conducted.  As the court observed, employees who are ordered to rest can do so in various settings, such as a beach in a distant country, the deck of their lake home or anywhere else the employee finds suitably restful.

The critical question is not where the employee is but what the employee is doing.  If that individual is not supposed to lift more than 20 lbs, you may assume that the restriction is being observed regardless of physical location.  However, if you spot that person hauling a huge cooler down to the lake, or if you see pictures on social media of other behaviors outside of the designated restrictions, action may then be taken.  Just be sure that you have carefully considered the medical documentation and the evidence of noncompliance.

We thank Summer Associate Kau Guannu for her substantial contribution in preparing this post.