Question: One our employees called in sick, saying he had COVID-19 (coronavirus) symptoms. We approved the sick day. His coworker showed us a video of the “sick” employee on a road trip. He lied to us! Can we fire him?
Answer: Be careful when questions arise about the legitimacy of an employee’s request for time off. You cannot retaliate against employees whose use of leave qualifies for protection, such as paid sick leave under state law or medical leave pursuant to the federal Family and Medical Leave Act (FMLA), and it can be difficult to prove they were dishonest in their use of leave. If you suspect that an employee is lying about the need for leave, be sure to gather all the facts and consult with legal counsel before you jump to conclusions.
A federal court in California recently examined similar facts and ruled that the employee’s retaliation claim can proceed to a jury. The day before his scheduled shift, the employee sent a text to his manager reporting that he was sick and could “barely walk.” He also said that he tried to send his doctor’s note the night before, but it didn’t go through. That same day, the employee posted a video on Facebook showing that he was driving his brother to and from Nevada. The company fired him for giving “false and misleading information” regarding the absence. The employee admitted he was driving when he sent the texts. He also testified that his employer didn’t allow him to give an explanation before he was terminated. The court said that a jury should decide whether the employee’s text message that he could “barely walk,” while driving, was misleading (Thomasson v. Sentinel Transportation, LLC, ED Cal, Jan. 2022).