Investigate suspected FMLA intermittent leave abuse


Dishonest employees often abuse their right to take intermittent FMLA leave. Fortunately, courts grant employers broad leeway to investigate suspicious absences.

Example case: Marsha, who worked for Cooper Health Systems, has a son with attention deficit hyperactivity disorder and behavioral problems that she claimed required constant supervision. Cooper granted Marsha’s request to take intermittent FMLA leave to care for him when he wasn’t in school. She took about 100 days of intermittent leave per year.

Then Marsha’s supervisor heard from another employee that Marsha was taking intermittent leave before or after weekends and on days when requests for vacation leave were denied. The employer hired an investigator to conduct surveillance on Marsha on a day she took intermittent leave. Video showed Marsha running errands and exercising at a gym, all without her son. The same pattern was observed the next two days, including one when her son was at school. Marsha was fired for leave abuse.

She sued, alleging retaliation for using FMLA leave. The court dismissed her lawsuit. It said Cooper acted in good faith when investigating suspected FMLA abuse and fired Marsha because it reasonably relied on the investigator’s video evidence. (Vanhook v. Cooper Health Systems, 3rd Cir., 2022)