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Busted [Bracket]: Facebook Posts From Employee’s Vacation Undermine FMLA Claims

Ah, the tell-tale signs of March are here.  The winter is starting to dissipate in the northern climes, we’ve set the clocks forward, and Syracuse is bound for another Final Four run.  Unfortunately, most teams won’t be so lucky and many coaches will soon find themselves on a beach.  And why not?  After a long, hard-fought season that fell just a bit short, might as well take a warm-weather vacation – go for a quick swim, maybe hit the amusement park, and take a few pictures of all the fun in the sun and post them to Facebook.  Sounds like a marvelous idea for many NCAA coaches, but not so much for employees out on FMLA leave.  The plaintiff in Jones v. Gulf Coast Health Care of Delaware, a recent case out of a Florida federal court, learned this the hard way.


Rodney Jones, an employee of Accentia Health, took 12 weeks of FMLA leave for shoulder surgery, but was unable to provide a “fitness for duty” certification because, his doctor said, he needed additional therapy on his shoulder.  Accentia permitted him to take an additional month of non-FMLA leave.  Towards the end of his FMLA leave and during his non-FMLA leave, Jones took trips to Busch Gardens in Florida and to St. Martin.  Jones posted several pictures of his excursions to Facebook – including, for example, pictures of him swimming in the ocean (this, of course, during the time in which he was supposed to be recovering from shoulder surgery).

Accentia discovered the photos Jones posted to Facebook and provided him with an opportunity to explain the pictures.  When he could not do so, Accentia terminated his employment.  Jones then sued Accentia, claiming it interfered with his exercise of FMLA rights and retaliated against him for taking leave under the FMLA.

Termination Not Illegal

The court sided with Accentia.  First, Jones’ interference claim failed because Accentia provided him with the required 12 week leave and did not unlawfully interfere with his right to return to work thereafter.  Accentia had a uniform policy and practice of requiring each employee to provide a “fitness for duty” certification before returning from FMLA leave.  When Jones failed to provide such certification at the end of his FMLA leave, he forfeited his right to return under the FMLA.

Second, Jones’ retaliation claim failed because he failed to show Accentia terminated his employment because he requested or took FMLA leave.  Rather, Accentia terminated his employment for his well-documented conduct during his FMLA leave and non-FMLA leave.


This case provides several important lessons for employers.

  1. It is important to provide employees with an opportunity to explain conduct that appears to be an abuse of their FMLA leave entitlement. Employers who defend FMLA retaliation cases based on their “honest belief” that employees were misusing FMLA are much more likely to succeed if they conduct a thorough investigation into the employee’s conduct and give the employee an opportunity to explain the conduct.
  2. Ensure that any “fitness for duty” certification requirement applies uniformly to all similarly-situated employees (e., same job, same serious health condition) who take FMLA leave. The court in this case found that Jones’ interference claim failed, in part, because Accentia’s “fitness for duty” certification requirement applied to all employees similarly-situated to Jones.  Had it enforced this policy on an ad hoc basis, the outcome may have been different.

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Dan Long