“Use ‘Honest Suspicion’ Defense With Caution”
When asked recently about the discovery that over 90 percent of Long Island Rail Road retirees are receiving disability insurance payments, New York Senator Charles E. Schumer replied, “We all know something is rotten in Denmark.”
Senator Schumer was not alone – many were shocked by The New York Times report that in one year, 97 percent of LIRR retirees applied for, and received, disability benefits. To add insult to injury, the Times located some of these disabled retirees, each of whom was certified as disabled by a doctor, playing golf in state parks.
The question for employers faced with an employee who is on a disability leave of absence pursuant to certification from a healthcare provider, but whom they have reason to suspect is not using the leave for its intended purpose, is what is to be done? Under the Family and Medical Leave Act (“FMLA”), the employer must proceed with caution, balancing its concerns with costs, productivity, fairness and morale against the employee’s right to take leave without interference or retaliation, as well as his or her privacy rights. An employer that determines an employee is abusing disability leave, and elects to terminate the employee while the employee is on leave, risks a claim of having interfered with the employee’s FMLA rights.
To defend against such claims, employers have invoked the defense that they had an “honest suspicion” that the employee was not using the leave for its intended purpose. In Vail v. Raybestos, the Seventh Circuit recently provided support for the “honest suspicion” defense, affirming summary judgment in favor of the employer that a termination based on the “honest suspicion” that the employee was abusing her leave did not interfere with the plaintiff-employee’s FMLA rights. In this article, we examine Vail v. Raybestos and its implications, with a note of caution regarding the possible limits to the “honest suspicion” defense.