By:  Chelcey E. Lieber

Let’s say an employee was “completely incapacitated” and needs to take leave due to a back injury. The employee is granted leave, but then terminated while on leave. This sets the perfect stage for a successful interference and retaliation claim, right? The Court in Jaszczyszyn v. Advantage Health Physician Network disagreed (full opinion may be found here:

Sara Jaszczyszn (“Sara”) requested, and was granted FMLA leave, in connection with a back injury she sustained years earlier. However, while on leave when she was allegedly “completely incapacitated,” Sara attended a festival over at least eight hours and shared pictures of the event on Facebook. Several of her co-workers saw the Facebook pictures of Sara drinking at the festival (for the curious of mind, the pictures can be found here and brought the matter up to their supervisor. After reviewing the matter internally, and meeting with Sara, Advantage terminated her for fraud. Sara then sued alleging retaliation and interference claims.

The Sixth Circuit affirmed the district court’s grant of summary judgment in favor of Advantage. The court explained that “the interference theory does not convert the FMLA into a strict-liability statute because interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Accordingly, the court held that, because Sara was granted her first approved leave (she had requested further leave, which had not yet been approved) — and paid for all of the time she had taken off prior to her termination — the district court correctly concluded that she could not sustain the interference claim.

With respect to the retaliation claim, the court determined that Sara had introduced “little to no evidence” to establish a causal connection between the protected FMLA activity and the adverse employment action. Instead, the court held that Advantage rightfully considered workplace FMLA fraud to be a serious issue, and Sara’s termination on this basis was non-retaliatory. Sara presented no evidence to refute Advantage’s honest belief that her claimed incapacitation was at odds with the pictures she posted on her own Facebook page. Accordingly, Sara’s claims were dismissed.

Although this case worked out in the employer’s favor, such is not always the case when terminating an employee while on leave for alleged misuse of leave. As noted in our prior post concerning the “honest belief” defense, which can be found here:, this defense is not always upheld depending on the investigation conducted and evidence provided in support of the belief. Therefore, while an employee on leave is not absolved from abiding by company policies and expectations, employers always need to be cautious when considering terminating an employee on leave for alleged misconduct.

Further, this case also deals with the ever-evolving world of social media and how it can be used in the employment context. Some employers might conclude from this case that they should check Facebook pages of employees who are on leave to determine if they are misusing leave. However, employers should think twice before doing so. If you were at our recent seminar on “Risks and Benefits of Social Media and Computers in the Workplace,” you heard about the dangers of using Facebook, including the risks when such information is obtained in violation of an employee’s privacy rights. Accordingly, before using social media as an investigatory tool, we recommend consulting legal counsel.