In DaPrato v. Massachusetts Water Resources Authority, the Supreme Judicial Court (SJC) upheld a superior court jury verdict and judgment to an employee who was terminated for going on vacation while out on Family Medical Leave Act (FMLA) leave following foot surgery. The decision makes clear that an employer should not automatically presume that an employee is violating the terms of their medical leave when they go on vacation during this leave. In this case, Mr. DaParto’s physician had confirmed that he was not cleared to return to work, but that his vacation activities did not violate his post-surgical restrictions. DeParto sued and was awarded almost $2 million in damages.
While this decision is significant, it is worth noting that the Massachusetts Water Resources Authority (MWRA) made a number of mistakes along the way that made a difference in the outcome of this case. For instance, MWRA did not seek review of the employee’s medical records, it declined to conduct an independent medical examination, and it ignored his FMLA paperwork. These decisions were likely made based on the opinion of the Human Resources Director who testified that she believed all vacations while on medical leave are impermissible. This is incorrect. Employers may only consider an employee’s conduct on leave that is inconsistent with the reason for leave. For example, going mountain climbing while recovering from hip surgery.
In addition, employers must conduct a thorough investigation prior to taking adverse action against an employee for abusing medical leave, including taking into account all available evidence to determine whether the conduct was inconsistent with the leave. In this case, MWRA attempted to introduce photographs of Mr. DaParto standing on a boat and holding a large fish, but this evidence had not been considered when the termination decision was made. Even more troubling, MWRA never reviewed the surgeon’s notes and did not follow up with him on the status of the recovery. Had the employer proceeded in “good faith”, it could have eliminated liquidated damages.
