Can Employer that Suspects FMLA Abuse Hire a P.I.? Court Says Yes

This is always a tricky situation. You do not want to accuse an employee of FMLA abuse when they are using the leave legitimately, but there are also a few bad apples out there who take advantage of the system.

When one employer thought an employee was taking advantage, it decided to hire a private investigator (P.I.).

Used FMLA for errands

Marsha VanHook worked for the Cooper Health System in New Jersey when she requested intermittent FMLA leave to care for her sick son.

VanHook took many FMLA days, as well as additional vacation days. These days were unscheduled and resulted in an attendance warning. After hearing from VanHook's co-workers that she was not taking FMLA days for legitimate reasons, the company became suspicious.

When VanHook's FMLA days began always falling on weekends or around scheduled PTO, the employer hired a private investigator to follow VanHook on three of her FMLA days.

For the next three days, the P.I. discovered that VanHook was not caring for her sick son, as she claimed to her employer. Her activities included coffee runs, shopping, going to the gym and taking her other child to school.

Upon learning this, the company fired VanHook for FMLA abuse. She then sued for a violation of her FMLA rights.

Right to surveil

Shockingly, VanHook did not deny the FMLA abuse. Instead, she claimed the employer had no right to surveil her since it had no cause. The Third Circuit quickly rejected her claims, stating, "nothing in the FMLA prevents employers from monitoring employees' activities while on FMLA leave to ensure they do not abuse their leave." (Marsha VanHook v. Cooper Health System)

The court also added that the employer did have reasonable suspicion to begin monitoring VanHook's activities, due to the information from her co-workers.

The good news for employers is you can take action and hire a P.I. if you suspect an employee is abusing FMLA leave. However, it is important to give employees a chance to explain before firing them. Sometimes activities that do not look FMLA-related turn out to be.