Can an employee be terminated for going on vacation when taking leave under the Family and Medical Leave Act?

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Attorney Harrison Oldham

Can an employee be terminated for going on vacation when taking leave under the Family and Medical Leave Act? Maybe not. Earlier this year, the Massachusetts Supreme Judicial Court found that an employee could not terminated for going on vacation when taking leave under the Family and Medical Leave Act.  In that case, the plaintiff, Richard DaPrato, former information technology manager for the Massachusetts Water Resources Authority (“MWRA”), took FMLA leave following a foot surgery.

In January 2015, DePrato told his employer he would need surgery on his foot. DaPratro applied for FMLA leave and submitted a doctor’s note that he would be out of work for four to six weeks after surgery and would transition to putting weight on his foot after four weeks. Prior to taking the FMLA leave, DaPrato determined that he would exhaust his sick time and vacation time before returning to work. He therefore spoke to his HR manager about MWRA’s salary continuation policy, which provides pay to managers who take FMLA leave due to a “serious health condition that prevents the employee from performing job requirements.” DaPrato was approved to receive the salary continuation benefit while on FMLA leave.

A few weeks after surgery, DaPrato asked to return from medical leave early, as he could walk with crutches and did not want to exhaust his vacation time. MWRA, however, would not let him return without a doctor’s note, which DaPrato was unable to obtain until his next scheduled appointment some weeks later. Near the end of his FMLA leave, DaPrato went on a two-week beach vacation in Mexico with his family.

Upon returning to work, the MWRA terminated DaPrato’s employment, saying he violated the “salary continuation plan” by traveling to Mexico while on FMLA leave.

DaPrato sued, claiming among other things that MWRA terminated his employment in retaliation for his exercise of FMLA rights. At trial, DaPrato claimed the MWRA retaliated against him for exercising his right to take medical leave under the FMLA. The jury found the MWRA liable for retaliatory termination and awarded DaPrato almost $2 million, which included $715,385 in punitive damages and $616,886 in compensatory damages.

Upon reviewing the case, the Massachusetts Supreme Judicial Court in DaPrato v. Massachusetts Water Resources Authority upheld the jury verdict favoring DePrato.  In reaching its conclusion, the court found that “an employer may not treat the mere fact that an employee went on vacation while on FMLA leave, standing on its own, as grounds for an adverse employment action.”  But it clarified “that an employer may validly consider an employee’s conduct on vacation — or, for that matter, anywhere — that is inconsistent with his or her claimed reasons for medical leave, when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used.”

The court summarized its conclusions as follows:

DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the seashore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.

In summary, an employee’s decision (at least in Massachusetts) to go on vacation while out on FMLA leave is not, in and of itself, a valid basis for termination. This is not to say that an employee can go on a mountain climbing adventure while on FMLA leave for a serious health condition. That type of activity would likely be impermissible. However, an employer must carefully consider the reasons for the medical leave and most importantly, the known activities the employee engaged in during the vacation, including the timeline for rehabilitation and recovery in order to determine if the employee misrepresented their medical condition and engaged in FMLA abuse.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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