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What do you consider while daydreaming about the end of the pandemic? If it is pondering what actions employees may take while out on FMLA leave, you’re in luck. You need look no further than a case currently pending in federal court in Illinois for an illustrative example.
In
Yelp Inc. v. Smith, the company approved an employee’s request for continuous FMLA leave for treatment of a medical condition. During her leave, the employee took a vacation to Thailand. While on the vacation, the employee also sent text messages to a co-worker that contained expletives and threatened physical violence against two other employees.
The company learned about the text messages and investigated. Its investigation included making several efforts, including three phone calls, to contact the employee to discuss the issue. However, the employee refused to answer any questions and hung up on the company’s representative.
As a result of its investigation, the company discharged the employee for violating its zero-tolerance policy for threatening violence (whether at or outside of work). In addition, the company had serious concerns that the employee was dishonest regarding her FMLA leave. The certification the employee provided indicated she was restricted from sitting and bending, yet she took a vacation to Thailand (and requested the FMLA leave after learning she did not have enough PTO).
After her discharge, the employee sued the company, alleging that the company interfered with her FMLA leave and retaliated against her for taking FMLA leave. The company filed a motion to dismiss the employee’s claims and is awaiting the court’s decision.
Although the case is still pending, it provides several useful insights for employers. First, even when faced with potentially egregious conduct, employers should adequately investigate the potential misconduct before taking action. Here, among other things, the company made multiple attempts to get the employee’s side of the story before making the decision to discharge her. Second, especially when it comes to engaging in or threatening violence, ensure your policies cover a broad range of potential employee conduct. Here, the company’s zero-tolerance policy that prohibited engaging in or threatening violence included off-work conduct.