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FRAUD: Employer may terminate employee who misrepresented need for FMLA leave

Kentucky Employment Law Letter, Vol. 20, No. 6
March 2010

The Sixth U.S. Circuit Court of Appeals (which covers Kentucky) recently addressed whether an employer could terminate an employee who met the requirements for Family and Medical Leave Act (FMLA) leave but, by virtue of his behavior during the leave, revealed that he actually was able to work. Let’s take a look at the case. 


James Weimer requested leave under the FMLA from Honda of America after he suffered a head injury at work. While he was working on the assembly line, another employee pulled down a hatchback, which hit him across the top of his head. Weimer was taken to the emergency room with what appeared to be a minor injury. The next day, he requested a leave of absence under the FMLA, which was granted. He reported that he was suffering from nausea, headaches, and blurred vision. The day after commencing FMLA leave, however, he applied for a permit to have a porch built on his residence. 

Weimer remained on FMLA leave for nearly one month, which his doctor prescribed based on the symptoms he had reported. Following his return to work, Honda received an anonymous report that he had built a porch on his house during his FMLA leave. While building his porch, he reportedly had climbed a ladder and used power tools. 

Honda investigated the report and, based on its findings, terminated Weimer’s employment for misrepresenting his condition in violation of its “Associate Standards of Conduct.” Those standards provide that it is a violation to “misrepresent facts or falsify records or reports such as personnel records, medical records, leaves of absence, documentation, inventory counts, quality control reports, etc.” Weimer sued, claiming that Honda fired him in violation of the FMLA. 

Court’s decision 

The Sixth Circuit held that Honda was justified in terminating Weimer for misconduct because it had a reasonable basis to believe he had violated its legitimate nondiscriminatory rules. In this case, there was no question that Weimer was entitled to leave under the FMLA because he:

  1. had suffered a blow to his head that resulted in symptoms that caused him to be off work for more than three consecutive calendar days;
  2. was treated more than once for the condition; and
  3. reported symptoms that made it unsafe for him to work.

The court held that Honda presented evidence that Weimer had misrepresented his condition to the physician. The court noted that the only reason his FMLA leave was continued was his inaccurate, subjective complaints of headaches and blurred vision. Evidence showed, however, that the demands of building a porch were at least as strenuous as the demands of his job. Thus, the court concluded that if he could build a porch, he could have performed his job duties safely. 

Once Honda had articulated a nondiscriminatory reason for his discharge, Weimer could win only if he could prove that the company’s belief that he had misrepresented his condition wasn’t genuine but was a cover-up for the alleged unlawful reason (i.e., that he had taken leave under the FMLA). If an employer reasonably relies on specific legitimate facts at the time the decision was made, its “honest belief” provides a defense to claims that it acted for an allegedly unlawful motive. 

Weimer argued that if he engaged in activities at home that exceeded the job-related restrictions given to him by his physician, he could do so at his own risk and it shouldn’t affect the determination of whether he has a serious health condition under the FMLA. The court rejected that argument, stating that “an employee who requests FMLA leave [has] no greater protection against his or her employment being terminated for reasons unrelated to his FMLA request than he . . . did before submitting the request.” 

Honda presented evidence that Weimer lied to company physicians about his condition and his medical symptoms, which affected the determination of whether he could perform his duties. If he misrepresented his condition to remain on FMLA leave, Honda may legitimately 
terminate his employment for violating its standards of conduct. Weimer v. Honda of America Mfg. Inc., No. 08-4548 (6th Cir., 2009). 

Bottom line 

Although leaves under the FMLA can be very challenging for you to manage, policies that seek to prevent abuse are justifiable and lawful when properly applied.

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2010 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice


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