A story circulating through British newspapers presents food-for-thought for New Jersey employers. 62-year-old Paul Marshallsea made headlines last week when a video surfaced of Marshallsea wrestling a 6-foot shark away from a group of swimming children in Brisbane, Australia. The tragedy in this otherwise heroic story? Because Marshallsea's act of bravery -- and vacation -- occured while he was on a stress-related leave of absence from work, when Marshallsea's employer saw the video, the employer terminated his employment.
Said Marshallsea's employer, in support of the termination:
Whilst unfit to work, you were well enough to travel to Australia and, according to recent news footage of yourself in Queensland, you allegedly grabbed a shark by the tail and narrowly missed being bitten by quickly jumping out of the way; the photographs and footage appearing in newspapers and television broadcasts.
The story has led some to wonder whether the termination of Marshellsea's employment would pass muster under the FMLA. The answer: it depends.
Courts have made clear that employers do not violate the FMLA by promulgating sick leave policies that require employees who are out of work to "remain in the immediate vicinity of their home during the period of such a leave." See Pellegrino v. Communications Workers of Am.
Courts have also upheld as lawful terminations of employees whose employers have demonstrated that the employee lied about needing FMLA leave in order to take an otherwise unapproved vacation. See Robbins v. U.S. Foodservice, Inc.
However, employers must consider the nature of an employee's leave before disciplining that employee for vacationing during leave. Particularly when an employee's leave is related to stress or anxiety, leisure activities and even full-blown vacations may not necessarily constitute FMLA fraud. For example, one court recently held that an employee who was on stress-related leave did not abuse her leave when she used the leave time to "go out for lunch, get a haircut, attend a holiday party, and have dinner and drinks with a friend." Hyldahl v. AT&T.
The employee's physician, who had certified to the employer that the employee's stress prevented her from performing the functions of her position, had nevertheless approved such leisure activities as "coping" strategies. Accordingly, holding that the employer had violated the FMLA when the employer, citing the employee's leisure activities, terminated the employee's position for "FMLA fraud," the Court awarded the employee liquidated damages.
The lesson? Before disciplining an employee for FMLA abuse, make sure that the activities you perceive as abuse are indeed inconsistent with the employee's leave. Moran v. Redford Union School District.
Communication is key. It is not illegal for an employer to require an employee to notify the employer when he or she intends to travel during FMLA leave. Require certifications from the physicians of leave-taking employees. And if an employee does something during her leave that raises a red flag, before disciplining her, clarify with the employee or her physician that although the employee cannot perform the functions of her job, she can engage in the questionable activity.
It may turn out that, while work is out of the question, shark-wrestling is perfectly acceptable.
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