Ready, Aim, Mis-Fire
Injured Hunter Might Have FMLA Claim. At first glance, it’s hard to blame Devon Facility Management, LLC for firing Allen Pohutski.
Pohutski requested 11 days off from work in November of 2015. When the company denied the request, Pohutski then submitted an email to his boss the day before the rejected vacation, claiming he had a serious health condition – a knee injury – that required him to be off for the same 11 days. Then, the kicker, Devon Facility Management learned that Pohutski had gone on a hunting trip during the 11 days he claimed to be disabled by his knee injury. The company fired him and he sued, claiming interference and retaliation under the Family and Medical Leave Act.
Unfortunately for Devon Facility Management, it did not fully investigate Pohutski’s claims before concluding he was trying to scam his employer with a fake FMLA request. First, Pohutski did have a note from his orthopedic surgeon certifying his need for the requested medical leave. Second, the company failed to investigate what Pohutski did on the hunting trip – Pohutski claimed he stayed off his feet and stayed in the cabin and/or his car while others hunted, fully consistent with his medical restrictions.
As a result, a federal court in Michigan ruled last week that Pohutski may proceed with his lawsuit – but a determination on the merits could go either way.
We see these cases a lot – an employee claims he or she is medically disabled and invokes rights under the FMLA, worker’s comp, or the Americans with Disabilities Act. Then the employer learns the employee is enjoying a vacation on the beach, traveling with family, or - this is a new one – hunting and becomes ticked off, feeling it has been conned.
The Pohutski case is a double-barreled reminder that even when the facts look crystal clear at first, the employer must focus the cross-hairs before pulling the trigger. Conduct a reasonable investigation, determine the medical facts and claims, and find out whether the employee’s leisure activities were inconsistent with the claimed reasons for leave before firing an employee for dishonesty or leave abuse. Nothing about the medical leave laws prohibits an employee from enjoying his or her time off, so long as the activity does not contradict the claimed medical reasons for the leave from work.