It’s no secret that employees sometimes abuse benefits under the Family and Medical Leave Act (FMLA). It’s also no secret that pitfalls abound for employers trying to curb such abuse while accommodating legitimate medical leave needs.
A recent decision of the Massachusetts Supreme Court in DaPrato v. Massachusetts Water Resources Authority upheld a grand jury verdict in favor of an employee who was fired after his employer discovered he was on vacation with his family in Mexico while on leave to recover from surgery at the foot. This case highlights the tension involved in regulating FMLA abuse and offers some points of caution for employers around the world.
Richard DaPrato was Director of the Information Technology Department of the Massachusetts Water Resources Authority (MWRA). In January 2015, he told his employer that he would need foot surgery. DaPratro requested FMLA leave and submitted a doctor’s note stating that he would be out of work for four to six weeks after the operation, and that he would switch to putting weight on his foot after four weeks.
A few weeks after the operation, DaPrato asked to come back from his medical leave earlier, as he could walk on crutches and didn’t want to use up his vacation. The MWRA, however, wouldn’t let him return without a doctor’s note, which DaPrato couldn’t get until his next scheduled appointment a few weeks later. Towards the end of her FMLA leave, DaPrato went on a two-week beach vacation to Mexico with her family.
After returning to work, he emailed Human Resources indicating that he intended to take FMLA leave again to have knee surgery. The HR manager forwarded the email to an HR manager with the message “Is it serious”, to which the HR manager replied, “OMG”.
That same day, MWRA learned that DaPrato had vacationed in Mexico while on FMLA leave. The MWRA investigated, concluded that DaPrato had distorted his state of health and terminated his employment.
DaPrato filed a lawsuit, claiming, among other things, that MWRA terminated his employment in retaliation for exercising his FMLA rights. At trial, the MWRA showed the jury photos of DaPrato in Mexico, standing on a boat fishing and holding a large fish he had caught. In fact, the attorney for the MWRA apparently went to extra lengths to keep the photos visible to the jury – a fact that would prove important on appeal. But while MWRA offered these images to challenge DaPrato’s account of his physical limitations while in Mexico, above all, MWRA did not own the photos when he decided to terminate his employment. Also during the trial, the human resources director of the MWRA said that “I don’t think a seriously ill or disabled person can be on vacation.”
The jury found that the MWRA terminated DaPrato in retaliation for taking FMLA leave and expressing its intention to do so again. The jury awarded back wages, severance pay, emotional distress damages, punitive damages and attorney fees, for a total judgment exceeding $ 2 million.
On appeal to the Massachusetts Supreme Court, the MWRA argued that the lower court erred in telling the jury that it could not consider DaPrato “to have taken or requested [FMLA] leave or spent time to recover in a particular location or in a particular way ”to determine if the MWRA had a legitimate reason to fire him. The court concluded that this instruction was “problematic” but not a prejudicial error, as the instruction was intended to minimize the risk that the jury would be influenced by “attempts by the MWRA, by means of photographs and evidence, to play on the jury’s possible resentment … against DaPrato for taking a vacation while on FMLA leave. The court juxtaposed the MWRA’s efforts to draw attention to the photographs with the fact that the photos were not available to the MWRA when it terminated DaPrato. The court acknowledged that the footage raised “legitimate questions” as to whether DaPrato was entirely truthful about the extent of its activities while on vacation; however, no error was prejudicial as the jury awarded punitive damages, meaning they found MWRA’s conduct scandalous.
The court’s opinion sets out several takeaways for employers attempting to comply with the FMLA while limiting the potential abuse of the FMLA:
- Employees can take vacation while on FMLA leave. The court explained that the statement by the human resources director of the MWRA that an ill or disabled employee could not take vacation was an error in law. On the other hand, an employer may validly view an employee’s conduct on vacation (or anywhere) that is inconsistent with the employee’s reasons for medical leave. The court observed that “[a]An employee who is recovering from a leg injury can sit with their leg raised at the seaside while fully complying with the FMLA leave requirements, but cannot climb Machu Picchu without abusing the FMLA process.
- An expression of intention to take FMLA leave in the future is a protected activity. In this case, there was evidence that the MWRA was unhappy not only with DaPrato’s activities while on leave, but also with his intention to take another leave.
- The electronic mail is a “proof mail”. Regardless of the intention of MWRA’s HR Director and HR Manager when they wrote “Is he serious” and “OMG” in response to DaPrato’s mention of future FMLA leave, the jury could easily, and probably did, interpret these statements as expressions of hostility towards his use of the leave. .
- The employer’s defense against dismissal must be based on the evidence he had at the time. While the fishing photographs questioned DaPrato’s credibility, their usefulness to the MWRA was limited because the MWRA did not have the photos when it fired DaPrato. An employer cannot be expected to defend an alleged retaliatory termination with evidence obtained later in litigation; rather, a jury must determine the employer’s motive on the basis of the evidence available to it at the time of the dismissal decision. (It is not clear from the Notice of Appeal whether the MWRA relied on an affirmative defense after acquired evidence, or to what extent such a defense was successful.)