In a recent FMLA case, a county maintenance worker was approved to take intermittent leave whenever his esophageal achalasia (a throat condition) flared up. This employee also happened to be a singer in a local rock ‘n roll band. Under the robust category of “be-careful-what-you-post-on-Facebook-whenever-you-take-FMLA-for-your-throat-condition-and-also-happen-to-be-the-leader-singer-in-a-band,” coworkers saw pictures and videos of him on Facebook belting out the tunes with his mates on evenings in which he had left work earlier in the day to take FMLA leave. Oops.
When the employer terminated the employee for FMLA abuse, the employee sued for retaliation. The court, however, found that the employee could not demonstrate a “triable issue of fact” and dismissed his case. My guess is that rock ‘n roll singer is now singing the blues.
Dumb jokes aside, it is important to point out that the “fired for FMLA abuse” case law is mixed. In another case, an employee who was out on FMLA leave with a back issue posted videos on Facebook of her dancing at a bar one night. The employer immediately terminated her and she sued. The court ruled against the employer because they had simply jumped to the conclusion that such activity was inconsistent with her medical condition without first consulting a medical expert. So, it’s definitely a good idea to check with a medical expert (and get the complete story from the employee as well) before taking an adverse action.
By the way, here’s a bit of really obscure musical trivia: most people don’t realize that the original title for KISS’ big hit, “I Want to Rock ‘n Roll all Night and Party Every Day,” was actually, “Because I Want to Rock ‘n Roll all Night I Take FMLA during the Day.” I am totally serious about this. I read it on the internet.
This information is not intended as legal advice