Conducting Employee Surveillance to Curb FMLA Abuse
Effective administration of intermittent leaves is a major challenge for every employer covered by the FMLA. Employers are often frustrated by what appear to be patterns of FMLA abuse such as employees calling off of work on Fridays or Mondays. The FMLA regulations provide limited options to curb FMLA abuse such as allowing the employer to obtain medical certification validating the need for intermittent leave, providing a process for medical recertification, and permitting the employer to require the employee to comply with the employer's usual procedures for requesting leave.
However, even with these options, we often are asked by clients whether they can use surveillance in egregious abuse cases. The answer is yes, but you must exercise caution before deciding to use surveillance.
As you may know, the FMLA prohibits employers from taking certain actions against employees, including interfering with the use of FMLA leave. There have been some court cases that have addressed whether an employer interfered with an employee's exercise of FMLA rights by using surveillance to monitor the employee during leave.
In some cases, courts have ruled in the employer's favor and dismissed the lawsuit when the surveillance revealed facts that unequivocally demonstrated that the employee was engaged in conduct that violated the medical restrictions giving rise to the leave. See http://bulk.resource.org/courts.gov/c/F3/447/447.F3d.984.05-3105.html. For instance, in one case, an employee claimed to be too dizzy to drive to work but was seen working out at the gym while on leave. In another case, an employee who was on leave for recovery of knee replacement surgery was observed walking, driving, sitting, and shopping without difficulty.
In other cases, however, courts have found that there could be interference with an employee's exercise of FMLA. In one case, an employer fired an employee on an intermittent FMLA leave for depression after she was videotaped driving, shopping, and running errands. The court held that a jury should decide whether the employer interfered with the employee's use of FMLA or discriminated against her for using FMLA, because the videotape did not necessarily demonstrate that the employee did not take leave for its intended purpose. See http://www.hr.cch.com/cases/Nelson.pdf.
Thus, before deciding to use surveillance, employers should consider the medical restrictions at issue and what the surveillance is likely to show. In all cases, employers must ensure that the surveillance is used only in egregious cases where the facts suggest a repeated pattern of FMLA abuse. Also, the surveillance should be limited to public areas; otherwise the employer could be subject to claims of invasion of privacy by the employee and/or his or her family members. Employers should hire trained and licensed private investigators if they decide to proceed with surveillance.
Using Fitness-for-Duty Exams to Avoid Possible Harmful Conduct
The ADA and its regulations generally prohibit an employer from requiring medical examinations or inquiring about the existence or severity of an employee's disability. See http://edocket.access.gpo.gov/cfr_2009/julqtr/29cfr1630.13.htm. There are specific instances in which a medical examination of an employee may justified, and the ADA will allow an employer to require one. One of these exceptions is an employee fitness-for-duty examination. See http://edocket.access.gpo.gov/cfr_2009/julqtr/29cfr1630.14.htm.
A fitness-for-duty examination is intended to determine whether an employee is able to perform job-related functions. Under the ADA, an employer can require a fitness-for-duty examination only if it is job-related and consistent with business necessity. Often an employee's job performance has already suffered as a result of a medical condition, which can show that a fitness-for-duty examination is a business necessity. However, as explained recently in Brownfield v. Yakima, Washington, an employer does not have to wait until an employee has done real harm or injury before ordering a fitness-for-duty examination. See http://case.lawmemo.com/9/brownfield.pdf.
In Brownfield, the city required a police officer to undergo a fitness-for-duty examination after he exhibited emotionally volatile behavior in the workplace. The officer was examined to determine whether he was fit for police duty and, after refusing to attend a follow-up exam, was terminated. In his lawsuit, the officer claimed the city violated the ADA by requiring him to undergo a fitness-for-duty exam because there was no evidence his medical condition had caused performance problems.
The court found that a "prophylactic psychological examination" in response to an employee's erratic behavior can sometimes satisfy the business necessity requirement, particularly when an employee is engaged in dangerous work. The officer "swore at a superior after abruptly leaving a meeting despite a direct order to the contrary; he engaged in a loud argument with a co-worker and became extremely angry when he learned the incident was being investigated; he reported that his legs began shaking and he felt himself losing control during a traffic stop; his wife called police to report a domestic altercation with Brownfield; and he made several disturbing comments to a co-worker such as 'it doesn't matter how this ends.'" Based on the officer's conduct, the court determined even though his behavior had not yet affected his job performance, the city had a legitimate basis to doubt his ability to perform his job duties as a police officer.
Employers have an obligation to maintain a safe workplace and also can potentially be held responsible for harm caused to people with whom their employees come into contact while performing their jobs. In extreme situations, when an employee has acted erratically or irrationally or demonstrated emotionally volatile behavior, an employer may be well served to require a fitness-for-duty examination as a preventative measure against potential harmful or injurious conduct. As cautioned by the court in Brownfield, this option must be balanced against overuse of fitness-for-duty examinations. An employee's annoying or inefficient behavior is not enough to justify an exam — there must be genuine reason to doubt whether the employee can perform job-related functions. Decisions relating to fitness-for-duty examinations and other disability-related issues are very fact-specific and should always be determined on a case-by-case basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
