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  1. Being capable of lying around on the beach doesn’t mean you’re suddenly capable of performing the duties of your job, so that is a danger for the employer. Seems like this guy, working at a hospital, and having had shoulder surgery, probably still have physical limitations. Even if he can’t perform at least one of the essential functions of his job, this doesn’t mean he isn’t still ‘recovering’ even if it’s in the Caribbean. There is no obvious fraud here at all.

    • I totally agree. I had a shoulder replacement and spent two weeks on the beach during my second month of recovery but I could not have performed a full work schedule by any means and I had physical therapy three times a week there at my own expense since it was out of my HMO’s network. My supervisor was aware of all of this too.

    • Agree with Joey and Debbie. I also had rotator-cuff surgery and a worker’s comp claim because of it. I took a trip with friends in the last weeks of my time away from work. While I was able to relax by a pool, eat in restaurants, and enjoy a watercolor class, I was also unable to carry my own luggage, drink or drive (or WORK) because of limited use of my arm and use of pain medication. People need to talk before they jump to conclusions.

    • agree… i can’t even see where trust was broken here. he openly posted the photos, and you know coworkers are going to see them. unless they were photos of him wrestling reef sharks? this just seems very, very petty. and to say it should be disturbing to all employers that someone might spend some of their recovery time on a beach instead of a couch is a bit much. i could understand some office gossip or irritation about it… but terminating the guy was pure retaliation. they ruled correctly.

    • I agree totally. As an HR practitioner, I would caution against the act of termination based on a picture. I can’t say how many times I’ve seen people perk up for a picture and are essentially not well. It would make more sense to have requested him to return to work on the premise that he has demonstrated that he is well or even request that he see a company approved physician to certify that he is in fact not well enough to perform the essential duties of his job. This would alleviate concerns on all sides and if he is well, he’d come back to work and if he refused then termination could be a viable option. Employers must be so careful to not assume the position of physician in FMLA cases and generally this looks very much like retaliation. I wouldn’t be surprised if there were some other reason he was terminated and the employer was only hanging the termination on FMLA. Bad-bad idea.

  2. This reminds me of supervisors at a former company that didn’t think an employee that took intermittent FMLA could come back to work with their hair or nails done. Just because you have FMLA doesn’t mean you’re a shut in 24/7, nor should you be treated as such. Meanwhile we had an employee upstairs that would purposely elevate her blood sugar to leave for the day and go to the casino.

  3. Um… although I agree that perhaps this was a violation of trust, depending on the type of work this employee performed, I don’t see how “relaxing” is NOT recovering from his surgery? I know from my own medical leaves after having children, that my mind could not function for work-level activities (nor my body), but going to the store, or resting at home, or resting elsewhere and recovering my mental capabilities, is what prepared me to return to work. I would expect any recovery to be similar. And if employers start mandating in policies what people can and cannot do on FMLA, then people will either get sneakier or find other ways to get around the system.

    That said, in other western “mindset” countries, relaxing and vacationing are taken more seriously than in the US, and they seem to have better work-life balance. Perhaps the employer should stay out of people’s personal lives, as long as they are coming back when expected and getting the job done, and people come back refreshed and ready to give 100%, not exhausted and distrustful of how their employer and coworkers seem to have so much time on their hands to involve themselves to this level…

    And this is also why I don’t friend coworkers on social media… LOL

  4. I agree with all the others who have posted here. Was the employee supposed to lie around in bed all day? Did his health care practitioner put restrictions on the employee? Now, if the employee had posted pictures of him playing golf, parasailing, or some other physically demanding activity, then it would cause pause and possible action on the part of the employee.

  5. I totally agree with the comments here. There appears to be an assumption that a person is not entitled to relax while on FMLA. Part of any recovery is the ability to relax and allow your body to heal. Where the person chooses to do that is irrelevant. It does not appear that the employee was out doing another job or other strenuous activity while on FMLA. I feel you’ve got the wrong take on this one, Jon.

  6. Based on this story, the only employer I know of that could have a case for discipline would be the military, and then you wouldn’t get fired, you’d get counseling and be forced to take vacation days (aka leave). The reason that would work there is because you have geographic boundaries for when you are not in a ‘leave’ status (sometimes even when you are in a leave status there are geo boundaries). I suppose if your HR policies or medical restrictions specified proximity to doctor or means/length of travel allowed, you’d also have grounds.

  7. I was out on FMLA – Birth of a Child. That should not prevent me from going on vacation during the FMLA period. Especially if I had planned the vacation well in advance. And I was using my leave to cover the leave of absence.

  8. Gotta say, I’m surprised so many disagree with my take on this case. Rotator-cuff surgery + FMLA verification of inability to work + Facebook posts of Caribbean vacation should equal easy case for termination of employment. If the employee is healthy enough for an island vacation, he’s health enough to work, period.


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