Fishing on FMLA Leave May or May Not Be Permissible Activity

Issue July/August 2019 August 2019 By Anthony Califano and Chris Kelleher
Labor & Employment Law Section Review
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From left: Anthony Califano and Chris Kelleher

In a recent decision, DaPrato v. Massachusetts Water Resources Authority, the Massachusetts Supreme Judicial Court (SJC) provided guidance to employers and employees on the type of conduct that is and is not permissible during a Family and Medical Leave Act (FMLA) leave. As is often the case, the particular circumstances are important.

In January 2015, Richard DaPrato applied for FMLA leave to recover from his upcoming foot surgery scheduled for Feb. 6, 2015. DaPrato’s doctor estimated that he would need about seven weeks of leave to recover. According to his FMLA application documents, DaPrato was required to stay off his right foot for four weeks, and then he could transition to weight-bearing activities over the next three weeks. The Massachusetts Water Resources Authority (MWRA) granted DaPrato’s leave request and provided him with “salary continuation” pay during his leave.

A few weeks after his surgery, DaPrato informed the MWRA that he hoped to return to work early because he could walk around with crutches. But DaPrato subsequently informed the MWRA that he would not be able to obtain his doctor’s permission to return to work until March 26, 2015.

Less than five weeks into his leave, DaPrato went on vacation with his family to Mexico. Upon his return to work, the human resources (HR) department learned about his vacation and obtained video recordings depicting DaPrato walking, driving and lifting luggage out of his car before his flight. The HR director, who later testified that she “wouldn’t think somebody who’s seriously ill or disabled would be able to be on vacation,” recommended DaPrato’s termination.

After the MWRA terminated DaPrato’s employment, litigation ensued. To prove his FMLA retaliation claim, DaPrato had to demonstrate that there was a but-for causal connection between his use of FMLA leave and his termination. The jury returned a verdict in DaPrato’s favor, awarding nearly $2 million in damages and attorneys’ fees.

On appeal, the MWRA claimed it was entitled to a new trial based on erroneous and prejudicial jury instructions. Notably, the MWRA argued that the trial judge improperly instructed the jury not to consider DaPrato’s conduct while on vacation. The instruction read:

DaPrato has not met [his burden of showing causation] if the MWRA discharged him for independent reasons, even if that discharge occurred during or after his taking of FMLA leave. A reason counts as an independent reason only if it does not include as a negative factor the fact that DaPrato took or requested leave or spent time recuperating in a particular location or in a particular manner.

The trial judge intended this instruction to be “curative” or to minimize the risk that the jury would be swayed by feelings of resentment toward DaPrato. That is because, during trial, the MWRA showed the jury pictures of DaPrato on vacation, standing on a boat and holding a large fish that he apparently just caught. The jury’s exposure to these pictures, in the trial judge’s opinion, was excessive. And the trial judge held that “you can’t penalize someone for going on vacation during FMLA leave.”

While the SJC found the above instruction to be “problematic,” it held that it was not an abuse of discretion and not prejudicial to the MWRA under the circumstances. The SJC clarified that “an employer may validly consider an employee’s conduct on vacation — or, for that matter, anywhere — that is inconsistent with his or her claimed reason for medical leave, when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used. … [V]acationing while on FMLA leave may take either permissible or impermissible forms.”

The SJC stated that there should be “[c]areful consideration of the reasons for the medical leave and the activities undertaken” during the leave when deciding whether the employee has abused FMLA leave. By way of example, the SJC said: “An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process.”

According to the SJC, the fishing trip pictures raised “legitimate questions.” The SJC observed, however, that the MWRA had not seen the photographs when making its termination decision. Likewise, the MWRA was not aware of DaPrato’s activities while on vacation in Mexico. The MWRA, therefore, could not have considered these things when making the termination decision. Ultimately, under the particular circumstances, the SJC held that it could not say the instruction amounted to an abuse of discretion, at least not a prejudicial one in light of “the jury’s unequivocal decision in favor of DaPrato.”

The MWRA also argued that the trial judge erroneously declined to instruct the jury that an employer is not liable under the FMLA if it discharges an employee based on an “honest belief” that the employee misused FMLA leave, even if that belief is mistaken. The SJC held that the judge properly declined to give such an instruction. The SJC reasoned that “honest belief” and “good faith” are defenses to damages, but not to liability.

The DaPrato decision is important because of the guidance it offers to employees, employers and attorneys. The SJC has cautioned that an employee’s vacation during an FMLA leave is not always a valid ground to take adverse employment action. That said, if an employee uses FMLA leave to engage in conduct that is inconsistent with his stated reason for medical leave, a Massachusetts employer with knowledge of the inconsistent conduct may take adverse action against the employee.

Anthony Califano, Esq. is a partner in the Labor & Employment department of Seyfarth Shaw LLP in Boston, where he devotes his practice to counseling employers and defending them in employment litigation.

Chris Kelleher, Esq. is an associate in the Labor & Employment department at Seyfarth Shaw LLP, where he focuses his practice on employment litigation and counseling.