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“Taking a Trip Is Not Protected Activity Under the FMLA”

By Fiona W. Ong - Shawe Rosenthal LLP

April 28, 2021

So said a federal court in tossing an employee’s rather cheeky claims of interference with her rights under the Family and Medical Leave Act, as well as retaliation for taking FMLA leave, when she was fired after taking a trip to Thailand – for which she had previously requested time off and was denied – while on FMLA leave.

In Smith v. Yelp, Inc., the employer denied an employee’s vacation request for a trip to Thailand in April because she didn’t have enough accrued paid time off. It suggested that she postpone the trip until she had sufficient leave to cover the vacation, resign and reapply after the trip, or forego the trip. In March, the employee requested and was granted FMLA leave through early June because of severe sciatica, which prevented her from sitting or standing for long periods of time and impacted her ability to walk.

(You know what’s coming next…) While on FMLA leave, the employee got on an airplane and flew to Thailand. (I googled the trip length – the shortest direct flight from Illinois to Thailand is about 18 hours! Most trips involve stops and total flight time of over 24 hours!!) It appears that she was also indiscreet about her little jaunt, as several co-workers reported her to management. Compounding her poor judgment, the employee then sent texts to another co-worker, threatening to hit or punch the co-workers who ratted her out. The recipient of the texts reported them to the employer.

The employer then attempted to call the employee multiple times over the next several days, but she didn’t respond until the fourth day, and refused to answer questions about her trip. The employer didn’t even get to ask about the texts because the employee hung up. It then sent her an email requiring her to set up a time to discuss the texts. She failed to respond. And it should not be surprising to anyone that the employee was then terminated for violation of the company’s policies on dishonesty, unethical behavior, and violence.

In an astonishing display of chutzpah, the employee then sued her employer for interference with her FMLA rights, as she was not reinstated at the end of her leave. The court dealt with those claims decisively, noting that “an employer is under no obligation to reinstate an employee who misuses disability leave.” An employer’s “honest suspicion” that the employee was not using the leave for its intended purpose is sufficient to defeat an FMLA claim. And sitting on a plane to Thailand – “a lengthy overseas flight” – was “clearly inconsistent” with the stated purpose of her leave: that she couldn’t sit for extended periods of time.

Moreover, the court stated that an employer need not reinstate an employee “if she would have been fired regardless of whether she took the FMLA leave.” In this case, the employee’s threats of violence were also grounds for termination. Regardless of whether, as the employee asserted, these were just empty threats made in jest out of frustration with her co-workers, they still violated the employer’s antiviolence policy and the employer was entitled to enforce that policy.

The court also made short shrift of the employee’s retaliation claim, noting that the employee was claiming that the employer fired her for taking a trip to Thailand and not for taking FMLA leave in the first place. In order to sustain an FMLA retaliation claim, the employee must establish that she engaged in some activity that was protected by the FMLA. This led the court to observe that “taking a trip is not protected activity under the FMLA.”

This case offers support for the principle that, as broad as FMLA protections are (as employers know, much to their frustration at times), FMLA leave does not insulate employees from the consequences of their misconduct. They can and should be held accountable for bad behavior, even if it occurs in the context of otherwise protected FMLA leave. But of course, wise employers should consult with their counsel in such situations to make sure that their reasons for discipline are not, well, flighty…

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