The federal Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654 and New Jersey Family Leave Act (“NJFLA”) N.J.S.A. 34:11B-1 et. seq. permits employees to take 12 weeks of protected unpaid leave when they or their immediate family suffer a serious medical condition or for a new born child. This allows the employee to cope and recuperate from such circumstances. Relatedly, an employer cannot punish an employee for taking FMLA or NJFLA leave. Indeed, the United States Court of Appeals for the 11th Circuit recently ruled that an employee can use his medical leave time off as vacation time, and cannot be fired for doing so, so long as taking such time off does not directly violate an express company policy. In Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261 (11thCir. 2017), the 11th Circuit remanded to the district court to decide whether an employer had subjected his employee to unlawful retaliation by firing him when he did not use his time off within the “spirit” of medical leave – to rehabilitate and recover – and instead vacationed.
In Jones, the employer, Accentia, granted plaintiff Rodney Jones (“Jones”), their Activities Director, 12 weeks of FMLA leave so that he could undergo rotator cuff surgery and fully recover. However, when Jones was scheduled to return, his doctor reported that Jones could not resume physical activity until February 1, 2015. Despite his doctor’s recommendations and his own physical limitations, Jones still wished to return to his job at the end of his FMLA leave. Jones understood his doctor’s report to simply mean that he needed to continue physical therapy, not that he was prohibited from working entirely. Therefore, he asked his supervisor to allow him to return to work on light duty. His requested was denied. In fact, Jones was told he would not be permitted to return to work unless he underwent and passed a fitness-for-duty exam. Because his supervisor was adamant that Jones could not return to work on light duty, Jones did not ask his doctor for a light-duty certification. Jones instead requested additional time off and was granted another 30 days of non-FMLA medical leave to complete his physical therapy.
During the additional leave time, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida where he spent time walking around and taking pictures of the park’s Christmas decorations. Jones also visited his family in the Caribbean for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean. When Jones returned to work, his supervisor confronted him with the vacation photos and informed him that “corporate” believed, based on these Facebook posts, Jones had been well enough to return to work without additional leave. Hence, Jones was suspended, and then his employment terminated following an investigation by the company.
The 11th Circuit reversed and remanded the district courts grant of summary judgment dismissing Jones’ FMLA retaliation claim. The Court found that because Jones had not violated any direct company policy which dictated how to use his medical leave, if it was ultimately found by a jury following trial that Accentia had fired him because of how he used the time off it could be considered unlawful retaliation. Therefore, although Accentia claimed that Jones was fired because his Facebook pictures started workplace gossip and created a morale issue among employees, Jones raised a viable pretext issue sufficient to allow his case to go to trial.
Employers must allow employees to take FMLA and NJFLA leave, but once having done so, may not punish the employee for what he or she does or doesn’t do during the leave period. In New Jersey it is unclear whether our state courts would find that NJFLA leave must be used strictly for recuperation and rehabilitation, or alternatively, may be used partially or wholly for recreation purposes. Therefore, to prevent employee abuse of leave, an employer should have company policies in place expressing in clear language how the employee may make use of FLMA and NJFLA leave.
At Mashel Law LLC, we are well experienced in FMLA and NJFLA claims. If you have been prevented from using FMLA and NJFLA leave, or have suffered retaliation for having done so, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.