Every summer, employers encounter a familiar situation: an employee is on Family and Medical Leave Act (FMLA) leave due to a serious health condition, and a manager sees a photo on social media of the employee at the beach. Immediately, the manager’s instincts point toward misuse of leave and potential discipline. Whether the employer should act on those instincts, however, depends less on where the employee went and more on what the employer knew and did prior to taking disciplinary action.

FMLA Basics and Background

The FMLA entitles an eligible employee to up to twelve weeks of unpaid, job-protected leave for certain family and medical reasons, including the employee’s own serious health condition. It is unlawful for an employer to interfere with an employee’s exercise of FMLA rights and, separately, to retaliate against an employee for exercising them. The FMLA does not, however, bar disciplining or terminating an employee for misconduct that surfaces during leave. This is where the “honest belief” defense becomes relevant.

The “Honest Belief” Defense

In jurisdictions recognizing the “honest belief” defense to FMLA retaliation claims, an employer may rely on a reasonably informed, honestly held belief that an employee misused FMLA leave to defeat an employee’s evidence of pretext, even if that belief later proves mistaken. The Sixth Circuit first recognized the defense in Smith v. Chrysler Corp., holding that a reason is “honestly held” where the employer made a “reasonably informed and considered decision” on the particularized facts before it at the time.

For example, in Seeger v. Cincinnati Bell Telephone Co., the Sixth Circuit affirmed summary judgment dismissal of an employee’s FMLA retaliation claim, finding it was enough that the employer reasonably and honestly believed the employee had committed FMLA fraud. In Seeger, an employee on leave for a herniated disc who reported he could not stand or walk for prolonged periods was seen walking roughly ten blocks unimpaired at a festival where he remained for approximately ninety minutes. The employer interviewed witnesses and the employee himself, reviewed the employee’s medical records, and clearly documented the basis for its decision before terminating him.

In analyzing whether the employer’s belief was reasonable, the Sixth Circuit emphasized that the employer was not required to conduct a perfect investigation or “[leave] no stone unturned,” only a to conduct reasonably informed one. The court also repeatedly emphasized that the relevant question was not whether the employee actually committed fraud, but whether the employer honestly believed the employee had done so after conducting a reasonably informed investigation.

When an Investigation Reasonably Supports a Finding of FMLA Leave Fraud or Abuse

The FMLA does not require an employee to stay confined to their home; travel and ordinary activity do not, standing alone, establish fraud or misuse of FMLA leave. As noted in the Seeger case, what matters is whether the activity is inconsistent with the certified condition, restrictions, or treatment regimen, or whether the employer reasonably believed it was after conducting an appropriate investigation.

Best Practices for Employers

• Begin with the certification. Require one for a serious health condition, and identify any deficiency in writing with an opportunity to cure.
• Consider recertification when new information casts doubt on the reason for, or continued need for, leave before moving directly to discipline.
• Investigate thoroughly: gather particularized facts, provide the employee an opportunity to explain, compare the observed activity to the specific medical restriction, and review the whole leave record rather than a single isolated incident.
• Do not rely on a vague “spirit of the leave” theory disconnected from a policy, restriction, or evidence of dishonesty.

This post was co-authored by Sam Russell, a law clerk in Burr & Forman's Charleston office. Sam attends the University of South Carolina.