An Employer's Measured Response To Suspected Workplace FMLA Fraud Wins The Day

The U.S. Court of Appeals for the Sixth Circuit issued its decision in Jaszczyszyn v. Advantage Health Physician Network, 2012 U.S. App. LEXIS 23162 (Nov. 7, 20012), affirming summary judgment for an employer in a case alleging retaliation and interference under the federal Family and Medical Leave Act (FMLA).

The court's decision focused heavily on the fact that the employer, Advantage Health Physician Network ("Advantage"), proactively initiated plaintiff Sara Jaszczyszyn's FMLA leave and took a measured approach in response to suspicions of fraud, rather than terminating first and asking questions later. In this case, Advantage terminated Jaszczyszyn's employment only after conducting an internal investigation and directly discussing concerns with her about potential fraudulent conduct – concerns that were supported by an "honest belief" of fraud after Jaszczyszyn posted photographs on Facebook that were inconsistent with her FMLA leave.

The Facts

Jaszczyszyn was employed by Advantage starting in January 2008. In July 2009, while serving as a customer service representative in Advantage's billing office, Jaszczyszyn began experiencing "flare-up" back pain from an automobile accident that had occurred 10 years prior. About a month later, Jaszczyszyn's physician determined that she was "completely incapacitated" and unable to report to work from August 31 to September 7.

Because Jaszczyszyn did not have enough accrued paid time off to cover her absences, Advantage recommend that she take FMLA leave to protect her job. Advantage provided Jaszczyszyn with the paperwork necessary to request FMLA leave. The relevant paperwork also informed Jaszczyszyn of her rights and responsibilities under the FMLA, as well as the fact that she would be required to maintain regular contact with her supervisor regarding her work schedule and to comply with Advantage's normal absence notification requirements.

On September 9, Jaszczyszyn submitted another document from her physician which noted she was having about four flare-ups a month and would be unable to perform her job functions during a flare-up. Advantage approved Jaszczyszyn for intermittent FMLA leave.

From the beginning of her FMLA leave, Jaszczyszyn failed to fulfill her obligation to report her "intermittent" leave to Advantage, and the company routinely had to remind Jaszczyszyn of her responsibilities. In addition, Jaszczyszyn treated the leave as continuous and open-ended, and never...