Imagine, an employee in your organization advises that they need to take leave pursuant to the Family and Medical Leave Act to recover from an upcoming surgical procedure. Your organization approves the leave and then you find out that while on leave and supposedly recovering from surgery, the employee goes on a family vacation to a far off beach resort. You are irate at what you perceive to be a blatant bait and switch and want to consider terminating the employee. Hopefully, you run all this by your General Counsel first because, depending on the circumstances, such termination could be deemed retaliatory and subject the company to a claim for substantial damages. Indeed, this is exactly what happened in DaPrato v. Massachusetts Water Resource Authority.

In that case, Richard A. DaPrato, who worked for the MWRA, was on FMLA leave recovering from foot surgery when he filed an application (signed by his surgeon) to extend his leave from March 20 to March 26. Shortly thereafter, DaPrato went on a family vacation to a Mexican beach resort. Approximately two weeks after returning from Mexico, the MWRA learned DaPrato had gone on vacation, reasoned that DaPrato had lied about his medical condition and decided to terminate him for that transgression.

DaPrato sued the MWRA, claiming that it violated the ADA, FMLA and state law for terminating him in retaliation for his taking FMLA leave. A jury agreed with DaPrato and awarded him $519,777 (later reduced to $408,443) for various compensatory damages, $715,385 in punitive damages, $208,443 in statutory liquidated damages and $605,690 in attorney’s fees. The MWRA appealed, but the Supreme Judicial Court of Massachusetts affirmed the judgment in DaPrato’s favor.In reaching its decision, the Court discussed that, while an employer may not take adverse employment action against an employee solely because the employee went on vacation while on FMLA leave, “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.” As examples, the SJC noted that an employer was not permitted to terminate an employee who was on FMLA leave for an anxiety disorder because the employee went skating in New York City, as the employee’s doctor had directed her to engage in stress relieving, pleasurable activates; but an employer could terminate an employee who went out on FMLA leave for a foot injury, yet was seen playing golf and going tubing.

Ultimately,the Court decided that an employee who is out on FMLA leave may go on vacation or engage in activities so long as the employee does not violate FMLA leave requirements.In DaPrato’s case, all the MWRA knew at the time he was terminated is that DaPrato had gone on vacation while recovering from foot surgery. It had no information to indicate that such a vacation was inconsistent with recovering from the foot surgery DaPrato claimed to have undergone. Indeed, while the MWRA’s HR director made it clear that she considered all vacations while on FMLA leave to be an abuse, the SJC held that such a conclusion simply was incorrect as a matter of law.

Although one might think that taking a vacation while on medical leave is a clear abuse and grounds for termination, DaPrato makes clear 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. . . . [V]acationing while on FMLA leave may take either permissible or impermissible forms.” As such,when making potential leave abuse determinations, employers and their in-house counsel should be sure to consider the activities engaged in as they relate to the claimed reason for leave and not act on a knee-jerk reaction that the employee may have misled them. Put another way, an injured foot can recover the same whether pool-side in the Caribbean or at home on the couch.