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Friday, April 21, 2017

How to Mishandle FMLA Fibbing



By Thomas Eden

Rodney Jones served as Activities Director for Accentia, a long-term-care nursing facility in Tampa Bay until he was fired in 2015, per court records. His duties included keeping up with resident charting and care plans, providing calendars for programming events, and arranging entertainment activities for the residents. While Jones’s job involved substantial desk work his duties also included regular physical tasks such as unloading vehicles. Jones also had five assistants to help execute activities.

Jones learned in 2014 that he needed to undergo shoulder surgery in order to repair his torn rotator cuff. Accentia determined that Jones was eligible for FMLA leave and granted him time off from September 26, 2014, until December 18, 2014. However, at the end of his leave, his doctor said he could not yet go back to work preforming the physical tasks like unloading vehicles but could perform his desk activities while he continued rehab.

At that point, Jones asked his supervisor if he could return on light duty, but his supervisor refused insisting “full duty only.” Jones then requested and was granted
30 days of additional non-FMLA leave.

Jones continued his weekly rehab, but twice visited the Busch Gardens theme park in Tampa Bay and went on a three day trip to St. Martin to visit family. He posted photos from these trips on his Facebook page.

Jones eventually returned to work on January 19, 2015, at which time Jones presented his supervisor with a fitness-for-duty certification confirming that Jones could immediately resume his job as Activities Director. His supervisor responded by showing Jones the photos from Jones’s Facebook page, which depicted the trips that he had taken while on medical leave. When Jones asked how he had obtained the photos, he responded that “you can thank your wonderful staff, they just ratted you out,” but also remarked that “maybe if you’re going to have a Facebook account, you shouldn’t have it on public.” Based on these Facebook posts, “corporate” believed that Jones had been well enough to return to work at an earlier point and terminated his employment.

On his FMLA Interference and Retaliation federal lawsuit, this week the Eleventh Circuit ruled that Jones, had shown enough facts to support his FMLA retaliation claim, including that the termination happened shortly after he returned from leave so that it could be temporally connected to his FMLA leave to present to a jury. The appeals court said the timing measure should be from the end of the worker's leave, not the beginning. There was also evidence of statements that the facility was not happy that Jones had taken FMLA during a resident survey period.

Common Sense Counsel: While having a compliant FMLA policy is critical, teach your supervisors  these 
     4 How to Mishandle FMLA Fibbing lessons
1) don’t tell your employee you are using Facebook to surveillance their activities – asking for a lawsuit;

2) allow them to return on light duty, maybe intermittent leave, and do not insist on a “full duty” release when not necessary; 

3) make no critical or derogatory comments about the employee exercising a federally protected right – loose lips sink companies; and 

4) timing is everything – give breathing room after protected conduct.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com with link to full court opinion.