Any HR pro would raise an eyebrow reading the broad outline of this FMLA abuseinvestigation. An employee schedules a knee surgery, then postpones that procedure tohave a different operation is done to remove a tumor on his foot.While he’s out on FMLA leave, an employee takes a vacation trip to Mexico. After he getsback, he lets the employer know he might soon request additional FMLA leave to have thepostponed surgery on his knee.

Already annoyed about the possible follow-on leave request, the employer finds out aboutthe vacation investigates possible FMLA abuse and sees a video of the employee liftingluggage out of a car.In spite of the employee’s argument that his activities on vacation complied with doctor’sorders, the employer fires him for FMLA abuse.Seem pretty clear cut? The employer thought so and decided not to settle when theemployee sued for retaliatory termination under FMLA, ADA and Massachusettsdiscrimination law.In the end, however, a jury heard a more detailed version of the story and awarded the firedemployee more than a million dollars in damages.

Appeals went all the way to the Massachusetts Supreme Judicial Court, where judgesupheld essentially all of the huge awards.The court’s agreement with the original jury decision provides a valuable reminder thatFMLA investigations and related employment decisions need to be thorough, carefullydocumented, and conducted calmly based on facts rather than emotion.Of course, employers have the right to terminate an FMLA abuser. And even if it gets to

court, many organizations successfully fend offclaims of interference and/or retaliation.So, why did this employer miss so badly in deciding that the employee had abused FMLAleave and deserved to be fired?First of all, the employer got some basics wrong.The HR director told the court that she believed that an employee out on FMLA could nottake a vacation during their leave.The court made it clear that there is no prohibition against someone recovering anywherehe or she wants to during medically-approved leave.But, said the court, “an employer may validly consider an employee’s conduct on vacation—or, for that matter, anywhere—that is inconsistent with his or her claimed reasons formedical leave,

when the employer has such information at the time the employer is evaluating whetherleave has been properly or improperly used. “The employee said his conduct wasn’t inconsistent with his doctor’s instructions, which saidhe needed six to eight weeks of FMLA to leave, should wear a walking boot, and needed toavoid some putting a lot of weight on his foot for a period.He was following those instructions, he said – wearing the boot and being very careful notto put excessive weight on his foot.A photo that showed him holding up a large fish was discounted on the grounds that thecompany got it after the fact, so it not have been a part of the company investigation.And the court agreed.

The Supreme court’s decision noted “An employee recovering from aleg injury may sit with his or her leg raised by the seashore while fully complying withFMLA leave requirements but may not climb Machu Picchu without abusing the FMLAprocess. Careful consideration of the reasons for the medical leave and the activitiesundertaken, including the timeline for rehabilitation and recovery, are required to determinewhether FMLA leave has been abused.”When HR recommended he should be fired for FMLA abuse, however, it didn’t considerthose factors. Nor did HR share that information with senior management.

Since the employer ignored the plaintiff’s medical records and FMLA application, the trialcourt said, the decision to fire the employee was instead based on “shock, outrage, andoffense”because the employee indicated he might request more FMLA leave for knee surgery. Andthe employee’s lawyers provided evidence to this effect.The Massachusetts Supreme Judicial Court upheld the jury award in the original case –$206,000 for back pay and lost future income and benefits, $200,000 for emotional distressand $715,385 in punitive damages. It also let stand the trial court’s award of $634,133 inliquidated damages and attorney fees.Essentially, this is the case where the company got fined for not following protocol.Make sure employment actions, especially around FMLA, are based on clear facts ratherthan emotion. Review all documentation carefully when weighing an employee’s version of

events.And remind all your execs and managers about the risk that careless communication mightlater resurface in court.