Leave Law Tip of the Month: Can you Terminate an Employee for Taking a Vacation During Medical Leave?
by Jennifer S. Hagerman
While it may seem to be an abuse of leave (FMLA or other) for an employee to take a vacation while out on medical leave, employers should avoid jumping to disciplining or terminating without a thorough examination of the facts and circumstances. Specifically, whether an employee can be disciplined or terminated for taking a vacation while on medical leave depends on the medical certification provided by the employee’s health care provider, the employee’s conduct and activities while on the vacation, as well as the timeline for rehabilitation and recovery. While there are cases that have upheld the termination of an employee while on medical leave, a recent opinion from the Massachusetts Supreme Court illustrates the potential risks of proceeding with such a termination without a comprehensive analysis.
In DaPrato v. Massachusetts Water Resources Authority (Mass. 2019), the Massachusetts Supreme Court affirmed a $1.3 million judgment in favor of an employee who sued for retaliation after he was terminated for taking a previously scheduled vacation to Mexico while he was on FMLA leave. The employee went on FMLA leave to have a tumor removed from his foot, and he intended to take additional FMLA leave at a later point for knee surgery. The medical certification provided by the employee’s surgeon advised that the employee would need to be on leave for four to six weeks and would wear a medical boot while transitioning to weight-bearing activity. After his surgery, the employee informed the employer that he wanted to return to work early to avoid using all of his vacation time while on leave. The employer would not permit him to return to work without a new medical certification, which he was unable to obtain.
Upon learning that the employee had gone on his yearly fishing vacation to Mexico and engaged in some physical activity, including lifting luggage out of the car, the HR director undertook an “investigation.” The employee advised that he had tried to return to work early, that he was wearing the boot while engaging in any questionable activities on vacation, and that the activities he engaged in were not inconsistent with the limitations on his medical certification. The HR director recommended the employee’s termination but did not provide the decision-makers with the employee’s FMLA documentation. The employer terminated the employee.
A jury found the employer liable for retaliatory termination in violation of the FMLA, ADA, and state discrimination law, and awarded back pay, front pay, damages for emotional distress, and punitive damages totaling over $1.3 million. The trial court also awarded over $600,000 in attorney’s fees and costs. The Massachusetts Supreme Court upheld the verdict and rejected the employer’s honest belief argument. The court concluded that “vacationing while on FMLA leave may take either permissible or impermissible forms,” and it is the employer’s responsibility to gather all of the facts and make a careful, considered decision.