Employer Can Fire Employee it Honestly Believes Abused FMLA Leave

A recent unpublished decision from the Third Circuit concludes that an employer can fire an employee because it honestly believes she abused her Family & Medical Leave Act (“FMLA”) leave.

Marsha VanHook worked as a patient representative for Cooper Health System for approximately nine years.  One of her sons has attention deficit hyperactivity disorder (“ADHD”), severe oppositional defiance disorder, chronic depression, and anxiety.

For many years, Cooper allowed Ms. VanHook to take an intermittent FMLA leave to care for her son when he was not in school or supervised by someone else. However, Ms. VanHook’s supervisor eventually heard from another employee that Ms. VanHook might be using her FMLA leave inappropriately.  In addition, Cooper’s Human Resources Department heard that Ms. VanHook was often using her FMLA Leave immediately before a weekend or another day off, which raised suspicion.

In response, Cooper hired a company to conduct surveillance on Ms. VanHook on three days on which she took FMLA leave. On two of those days, the surveillance company observed Ms. VanHook leaving her son at home alone while she went out shopping and performing other errands.  On the third day, when Ms. VanHook indicated she needed to take her son to doctor’s appointments, the surveillance firm witnessed her disabled son board a school bus before Ms. VanHook drove her other son to a medical appointment and two stores.

Three human resources employees subsequently met with Ms. VanHook to talk to her about her use of FMLA leave.  During that meeting, they offered Ms. VanHook an opportunity to view the surveillance video, but she refused and tried to turn in her badge.  Instead, Cooper fired Ms. VanHook for abusing FMLA leave.

VanHook filed a federal lawsuit, claiming Cooper retaliated against her in violation of the FMLA. The District Judge eventually granted the company’s motion for summary judgment, finding Ms. VanHook had no evidence demonstrating that Cooper’s justification for firing her, abusing FMLA leave, was a pretext (excuse) for retaliation. Ms. VanHook appealed.

On March 31, 2022, in VanHook v. Cooper Health System, the Third Circuit affirmed the dismissal of Ms. VanHook’s lawsuit.  It agreed with the District Court that Ms. VanHook did not have any evidence demonstrating that Cooper fired her in retaliation for taking FMLA leave.  In doing so, the Third Circuit noted that it would have been irrelevant if Ms. VanHook could prove she did not actually abuse her FMLA leave, since Cooper honestly believed she had done so.

The Third Circuit noted that there is nothing in the FMLA that prohibits an employer from monitoring an employee who is on an FMLA leave to ensure she is not abusing her leave. As a result, Cooper did not violate the FMLA by having Ms. VanHook surveilled.  It also concluded that, even if an employer needs a “reasonable suspicion” to conduct that type of surveillance, Cooper had a reasonable suspicion since one of her coworkers reported that she was abusing her FMLA leave and she often took FMLA leave before or after other days off.

While Cooper may not have violated the FMLA, it is not uncommon for employers to retaliate against employees in violation of it. If you believe your legal rights have been violated, you should feel free to contact Rabner Baumgart Ben-Asher & Nirenberg, P.C. at (201) 777-2250 to schedule a consultation with one of our New Jersey employment lawyers.