HR Question:

I currently have an employee who is out on FMLA leave due to their own serious injury.  Multiple employees have come to me sharing the employee’s Facebook post where she is sitting on the beach – clearly on vacation. The employees are upset and demand that she be fired. Can my employee take a vacation while they’re on FMLA leave?  What rights do I have to discipline (or terminate) this employee who I allowed off for her injury – not a two-week vacation?

HR Answer:

Social media can create a myriad of difficult and awkward situations for the workplace, often when it relates to FMLA leave. If employees are friends on Facebook or Instagram, and they see their “recovering” coworker on vacation while they are left “covering” the employee’s workload, it’s easy to see how frustration may set in. As a result, employee trust and morale may fall while you try to determine what – if any – action can be taken.

FMLA Requirements

The Family Medical Leave Act (FMLA) entitles eligible employees to take up to twelve weeks of leave during a twelve-month period due to a serious health condition rendering the employee unable to perform the functions of their position. What is important to note in this situation, however, is that the regulation does not limit the activities of the employee while they are out on leave. The only requirement is that they stay within the restrictions stated by their physician for the leave and to fulfill the requirements of the company leave policy (documentation, communication, etc.). So, what is an employer supposed to do in this circumstance?

Does the Conduct Violate the FMLA Leave Claim?

The most important thing to do in this situation is for HR to determine if the employee’s conduct while on vacation violates the leave claim that has been filed. For example, consider an employee who applied for and was approved for FMLA leave due to their own knee surgery. The reason for the subsequent six weeks off after surgery is a result of their inability to stand for long periods of time and needed time for recovery. This employee could enjoy their recovery while sitting on a beach to the same extent they could be sitting in their living room watching TV.

However, if pictures surface of the employee taking a jog down the beach or paddle boarding standing up, that is another issue. Employees can recuperate outside of their homes and still stay within the required restrictions. The bottom line is if the employee is meeting the restrictions stated on the approved FMLA leave, and they are not violating any of the company leave policies, then there is really no action that can be taken.

When faced with similar FMLA leave situations, remember to:

1. Review the medical certification related to the employee’s leave, including treatment plans and restricted activity.
2. Conduct a complete investigation of the alleged leave violations.
3. Maintain open communication. Discuss the allegations with the employee to assure you have the entire picture.
4. Review the policy and apply all policies consistently. Ask yourself:
   • Does your organization restrict travel on approved leaves? Remember – if the company limits travel during approved leaves, do so for EVERYONE, not just those on FMLA.
   • Is the employee following regular communication guidelines as stated in the leave policy?
   • Is the employee providing timely documentation for claim updates or recertifications as required by the policy?
5. Determine if any action can be taken.

If the leave is being properly used and restrictions are being followed (to the best of your knowledge), there is typically no violation. If they are violating those restrictions and appear to be abusing the leave policy, a full investigation should be launched, possibly by a third party to eliminate bias. Keep in mind that even with pictures, it may be difficult to prove an inappropriate use of the leave.

Finally, remember that any decision to take action must be made with a careful investigation into the alleged activities while taking into consideration all of the medical information as well as the timing of the vacation as it relates to the leave.

Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP for contributing to this edition of our HR Question of the Week!