Editor’s note: The Back to Basics column serves as an accessible way to understand employment law. If you’re new to HR (or just need a little refresher), follow along as the HR Dive team speaks with legal experts, peruses federal guidance and lays out the basics. Feel free to send tips, questions and feedback to [email protected].
A restaurant manager receives a cook’s request to take intermittent unpaid leave to deal with back pain flare-ups that make it difficult for him to stand or walk. The manager, together with the restaurant’s HR representative, determines that the employee’s request is covered by the Family and Medical Leave Act and it is approved.
Two weeks later, a member of the kitchen staff asks to show the manager a video that the staff member saw on social media. The video depicts the cook attending what seems to be a concert, jumping up and down and dancing to music. The timestamp on the video shows that it was taken during what would have been the cook’s usual dinnertime shift — but the manager knows the cook called out that evening to take leave.
When confronted with suspicions that an employee has misused or abused FMLA leave, employers have options, said Alexis Knapp, shareholder at Littler Mendelson. But those options must be exercised in a way that minimizes the risk of unlawful retaliation, she noted.
The FMLA permits eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period...
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