I expect that many more employers will be asking their employment counsel if they can conduct surveillance on employees who they expect are lying about their health status given today’s economy and the new FMLA regulations.
There have been a few courts that have addressed this issue. As one court in Colburn v. Parker Hannifin (1st Cir., 2005) noted that the FMLA prohibits employers from taking certain actions against employees:
In addition to the grant of substantive rights, the statute sets forth a list of prohibited acts at 29 U.S.C. § 2615:
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
(b) Interference with proceedings or inquiries
It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual -- (1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter; (2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or
(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter.
The court in that case concluded that the statute prohibits “both interference and discrimination.” This is the key issue – whether the employer’s conduct interferes with the employee’s protected leave. In Colburn, the employee claimed to be too dizzy to drive to work, but was caught working out at the gym while on leave. There the court found that the employer’s surveillance did not violate the FMLA.
Courts in the Seventh and Sixth Circuits have also held that employers may conduct surveillance of employees suspected of abusing their FMLA leave.
Does this mean that employers can always conduct surveillance on their employees? No. Employers need to be sure the surveillance does not go too far and invade the employee’s privacy, or the employee’s family members’ privacy. A court's analysis will be whether the investigation interferes with the employee's FMLA leave. But as many of these cases point out, if an employee travels on the plane (Crouch v. Whirlpool (7th Cir. 2006)), or works for husband’s business mowing lawns (Vail v. Raybestos (7th Cir. 2008), then these activities conducted in the public possibly could be monitored by an employer.