He used FMLA leave to build a porch — Was that legal?
July 24, 2008 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views
Suspect an employee’s guilty of FMLA abuse? Better think long and hard before firing him or her — you might end up in court.
An employee suffered a concussion at work, and his doctor ordered him to take time off. He was granted several weeks of FMLA leave.
While he was out, a co-worker who lived near the employee saw him building a porch in his front yard. The work included lugging around heavy planks of wood and operating power tools. The co-worker let the HR manager know what he’d seen.
When questioned, the employee admitted to spending his leave working on the porch. He was fired for taking leave when he didn’t need it.
FMLA abuse?
He sued the company — and won. The company argued that since he was well enough to build the porch, he was well enough to return to work.
But the court disagreed. Performing other activities while on leave might be evidence of abuse — but not proof. Being able to build a porch didn’t necessarily mean he was able to do his regular job.
Given the fact that the employee had completed adequate certification and had been told by his doctor not to go to work, the court decided his leave was legitimate.
Cite: Weimer v. Honda of America Mfg., Inc.
Tags: Family & Medical Leave Act, FMLA, fmla abuse, leave abuse
July 31st, 2008 at 11:17 am
If the employee suffered a concussion at work his injury should have been covered thru the employer’s workmen’s compensation insurance.
July 31st, 2008 at 3:42 pm
Even an employee on workers compensation leave is still entitled to FMLA leave and these would run concurrently.
August 7th, 2008 at 9:16 am
Did his doctor tell him not to go to work at his job, or not to go to work? Whether at your job or building a porch… it seems to me that he is performing work that could aggravate a concussion. I would suspect that his doctor had no idea he was building a porch. The key phrase here is that he “had been told by his doctor not to go to work”… building a porch is work.
August 8th, 2008 at 10:00 am
Maybe the Doctor’s prescription was intended to prevent mental stress, building a porch is physicial work versus mental.
October 29th, 2008 at 5:22 pm
This is just another situation that indicates major reform is needed in the FMLA language and intent.
Unfortunately you cannot legislate common sense and in this case, whoever the judge was, needs to be checked out for a concussion or serious brain damage
February 1st, 2009 at 3:29 pm
Something I’d like to know is how many hours per day or week he worked on the porch. A project like that, he can work an hour or two, then rest a few hours or the rest of the day. Seeing him do something on his time off may only indicate that he hates inactivity.
I’ve been medically disabled for 20 years. Most weeks, I can handle a few hours of work – sometimes more, sometimes less. I’m talking about housework, paying bills, filing insurance, etc. I still don’t keep on top of things at home as much as I’d like. But if you evaluated my fitness based on what I can accomplish on one given afternoon, you’d be way off. You could either assume I was totally bedridden and in need of a caregiver, or fully competent to do full-time office work. Either assumption would be totally wrong. Of all the financial, social and psychological adjustments I’ve had to make, the enforced rest has been the toughest.
February 4th, 2009 at 1:37 pm
He was medically relieved of work duty as required for FMLA. End of story. Re-wording the statue would have to include phrases such as “verified bed rest”, “documented inactivity” in order to constitute that he did NOTHING but rest while on FMLA. How difficult has it just become now?