Use of Surveillance to Show FMLA Abuse Did Not Violate Law, Federal Court Rules
Author: Robert S. Teachout, XpertHR Legal Editor
March 8, 2021
Using video surveillance to prove an employee abused her medical leave did not violate the Family and Medical Leave Act (FMLA), a federal court in Delaware has ruled. The surveillance by DuPont showed that the employee's behavior and activities did not conform to her doctor's orders and were inconsistent with her claim to need disability leave.
Following reconstructive surgery on her foot, DuPont approved the employee Peggy Snyder for three months of FMLA leave to recover, and she concurrently received short-term disability pay during that time. On the employee's FMLA certification form, her doctor also instructed that she was not to put any weight on her foot for 10 weeks.
While Snyder was on leave, DuPont began receiving reports from numerous managers and employees that she had been observed engaging in activities that did not follow the doctor's restrictions and were inconsistent with her claims for needing disability leave. The company hired an investigator to surveil Snyder and take video footage.
The surveillance showed Snyder driving, walking and using stairs, and lifting a small child (all of which were against her doctor's instructions), as well as walking through a parking lot without crutches, a boot or a limp, and getting a manicure and pedicure. After reviewing the video, DuPont fired Snyder for misrepresenting the facts of her injury and misusing company disability leave.
Snyder sued DuPont, claiming it had retaliated against her for using her benefits under the FMLA. The company moved to have the case summarily dismissed and the court agreed, finding that DuPont had terminated Snyder's employment for a legitimate nondiscriminatory reason based on ample evidence.
The court noted that DuPont's decision to surveil Snyder was based on information that reasonably suggested that she had misrepresented her need for disability leave. Further, the court said, nothing in the FMLA prevents employers from ensuring that employees who are on leave from work are not abusing their leave.
Jeff Nowak, a shareholder in Littler's Chicago office and author of the popular FMLA Insights blog, notes that courts generally support an employer's right to use surveillance where there is a clear concern that the employee is abusing FMLA leave.
"The use of surveillance can be effective to ensure employees are being honest with their use of leave," Nowak says, but warns that it is critical that surveillance be consistent with a company's personnel policies and any applicable collective bargaining agreements. "Courts typically want to know that employees have been on notice of the possibility of surveillance," Nowak states on his blog.
Employers should ensure that they have a documented objective reason prior to surveilling an employee suspected of FMLA abuse.