Q: Afterwards actively abasing my hip, I was accustomed for 12 weeks of leave from assignment beneath the Family and Medical Leave Act. Eight weeks into my leave, my doctor said I was accomplishing so able-bodied I could acknowledgment to work. I had planned a anniversary off Up North with friends, so I absitively to break off assignment for a brace added weeks. While I was on vacation, I went pond and hiking, and alike acclimated a zip line! My accompany took pictures of all of this and acquaint them on Facebook. I was tagged in best of them. The anniversary afterwards I got home, I got a alarm from work. My bang-up had apparent my friend’s FB posts. He said my FMLA affirmation was fraudulent, and I was fired. What can I do?
A: A picture, as they say, is account a thousand words. Unfortunately, you abstruse the adamantine way that alike innocent Facebook posts can accept damaging consequences.
Under the Family and Medical Leave Act, actuality accustomed a set cardinal of weeks’ leave for a “serious medical condition,” doesn’t beggarly you get to booty the abounding aeon of leave if you balance beforehand than expected. If an employer receives admonition “that casts agnosticism on the employee’s declared acumen for the absence or the continuing authority of the certification,” the employer may appeal recertification (a accounting account from a doctor) and acquiesce the artisan at atomic 15 canicule to respond.
The Facebook posts, assuming you to be advantageous and fit, absolutely gave your bang-up acumen to agnosticism you bare to be on leave.
Admittedly, your employer jumped the gun aback he bootless to appeal a “recertification” or accord you time to acknowledge afore giving you the ax. But, the basal band is, your doctor said you were fit, and you did not acquaint your boss.
In a case a few years ago, the Sixth Circuit disqualified in favor of a Michigan employer on facts agnate to the ones you describe. There, a artisan on FMLA leave for astringent and debilitating aback affliction appeared on Facebook accepting fun with accompany at a daylong Polish festival. Aback confronted by her employers, the artisan was clumsy to action an account for the alterity amid her activities at the anniversary and her declared disability to assignment due to aback pain. Her application was terminated. She after sued, claiming the employer’s accomplishments were a anatomy of arrest with her rights beneath the FMLA, and that the employer bootless to investigate her affirmation that she was in affliction while she was at the Polish festival. The agent contended, unsuccessfully, that her attendance at the anniversary was not inconsistent with her medical condition.
In 2013, in addition agnate case area a FB column showed a video of the allegedly bedridden artisan dancing, a District Court in Connecticut disqualified that the employer had bootless to absolutely investigate whether the dancing was inconsistent with the employee’s medical action and begin the artisan had presented abundant affirmation for the case to go to trial.
While your bang-up should accept investigated, the actuality that your doctor told you to go aback to assignment may be acclimated adjoin you if you try to accompany a accusation adjoin your employer. A board would acceptable be apprehensive of any affirmation that your joyride bottomward a zip band was constant with your “serious medical condition.”
Attorney Daniel A. Gwinn’s a Troy convenance focuses on application law, probate, and trusts and estates. Contact him with your acknowledged questions at [email protected] or appointment the website at www.gwinnlegal.com. “Ask the Lawyer” is advisory alone and should not be advised acknowledged advice.
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