Among the many concerns Connecticut employers have with the paid family and medical leave legislation Gov. Ned Lamont recently signed into law is the potential for abuse.

Connecticut's paid FMLA program, which creates the richest benefits of any paid and family medical leave law in the nation, applies to businesses with as few as one employee.

Every private sector worker in the state will pay a 0.5% payroll tax to fund the program, regardless of whether they use it or their employer already offers leave. Most public sector workers are exempt.

The state will begin collecting that tax on January 1, 2021, while the program begins paying out benefits from January 1, 2022.

There is widespread concern among employers about potential abuse, with the program providing workers up to 95% of pay for up to 12 to 14 weeks to care for themselves or a sick family member.

The new mandate provides a broad definition of family that includes someone who is not related but is like a family member, places a huge burden on businesses, especially small businesses.

Two Cases, Two Outcomes

A recent California court case demonstrates that an employer can be justified for firing a worker who abuses paid family and medical leave.

But a 2018 Massachusetts court case also shows that an employer should not adopt a "presumption of wrongdoing" when investigating an employee for suspected abuse of family and medical leave.

In a case decided in June, a U.S. District Court in California ruled that the Union Pacific Railroad was justified for firing mechanic Thomas Dunger, who appeared in a co-worker's live Facebook video of a fishing trip
while on paid leave.

When Union Pacific confronted the employee, he initially said he could not recall being on the fishing trip.

When the railroad confronted the employee, he initially said he could not recall being on the fishing trip, then admitted he appeared in the video.

The federal court granted Union Pacific's motion for summary judgment because it was undisputed that the railroad had a legitimate, nondiscriminatory reason for firing Dunger—his violating the policy.

The court rejected Dunger's arguments that he had not done anything on the fishing trip inconsistent with his medical restrictions, and that he could not have dishonestly used his medical leave to fish because the trip took place between shifts.

Remain Objective

Union Pacific was successful in this instance, but the 2018 Massachusetts case shows that employers must remain objective when investigating suspected abuse of paid family and medical leave.

In that case, Richard DaPrato sued his employers, the Massachusetts Water Resources Authority, after he was fired for taking medical leave for a foot injury and going on vacation during the leave.

A 2018 Massachusetts case shows that employers must remain objective when investigating suspected abuse of paid family and medical leave.

DaPrato told the authority that he would spend part of his recovery in Mexico at a planned family vacation cleared by his doctor.

But when DaPrato returned to work, a supervisor told him that he had violated a program that qualified him for 10 weeks of full pay while on medical leave by traveling to Mexico.

The authority used that to fire him.

Investigate in Good Faith

DaPrato sued and a jury awarded him a $1.2 million judgment in January 2018.

The jury found that the employer did not investigate in good faith and began its fact finding with a "presumption of wrongdoing."

The authority appealed, requesting a new trial, but an appellate court ruled in DaPrato's favor. With interest, his award grew to $2 million.

The DaPrato case reinforces the position that an employer cannot automatically presume an employee is violating the terms of a medical leave, and when an employer investigates suspected abuse, it must investigate in good faith.

The U.S. Labor Department's Wage and Hour Division offers these FMLA compliance resources for employers.


For more information, contact CBIA's Mark Soycher (860.244.1138) | @HRHotline

Filed Under: FMLA, Labor & Employment
  • Emmanuel Goldstein

    Why are most public sector workers exempt? I don’t think it’s fair that the private sector gets to have this fantastic, well-managed, and totally not fiscally unsustainable program all to ourselves. That would be selfish!