How to Avoid Potential Pitfalls in the Family and Medical Leave Act


It’s no secret that employees sometimes abuse benefits under the Family and Medical Leave Act (FMLA). Nonetheless, court side with the employees in many situations, so employers often find themselves trying to balance limiting abuses with accommodating legitimate needs for medical leave. This post will review a recent case involving an employee vacationing while on medical leave, then discuss key takeaways for employers trying to curb FMLA abuses.

DaPrato v. Massachusetts Water Resources Authority

In DaPrato v. Massachusetts Water Resources Authority1, the Massachusetts Supreme Judicial Court upheld a jury decision favoring an employee who was terminated after his employer discovered he vacationed with his family in Mexico while on medical leave. This case highlights the risks involved in employers’ attempts to regulate FMLA abuse.

Richard DaPrato was a manager in the information technology department of the Massachusetts Water Resources Authority (MWRA). In January 2015, he applied for FMLA leave to have surgery on his foot; he submitted a doctor’s note indicating he would not be able to put weight on his foot for four weeks, and would be away from work for four to six weeks. Based on his physician’s documentation, the HR department determined DaPrato’s eligibility for MWRA’s salary continuation policy, which provided pay during FMLA leave for a “serious health condition.”

When DaPrato discovered that he could walk with crutches much sooner than expected, he asked to return to work so as not to exhaust his sick and vacation time. However, MWRA would not let him return without a doctor’s note, which he could not obtain until his next appointment some weeks later. DaPrato then went on a two-week family vacation in Mexico near the end of his FMLA leave.

Soon after returning to work, DaPrato emailed Human Resources indicating he intended to take FMLA leave again to have knee surgery and requesting a copy of the salary continuation policy to avoid future issues. The HR director forwarded the email to an HR manager with the message “Is he serious,” and the HR manager replied, “OMG.” They never sent him the policy. That same day, MWRA learned that DaPrato had vacationed in Mexico, and after concluding that he had misrepresented his medical condition, they terminated his employment.

DaPrato sued in state court, claiming the MWRA had terminated his employment in retaliation for his exercise of FMLA rights. The jury sided with DaPrato and awarded nearly $1.3 million in punitive and emotional distress damages. On appeal, the Massachusetts Supreme Court affirmed the jury’s decision.

Implications for Employers

The Massachusetts Court’s opinion presents several critical takeaways for employers seeking to comply with the FMLA while curbing potential abuses.

First, it’s important to note that employees may vacation while on FMLA leave. MWRA’s HR director believed that an ill or disabled employee would not be able to vacation, but the court disagreed. However, an employer may challenge an employee’s conduct if it is inconsistent with his or her stated reasons for medical leave. For example, the court observed that “[a]n employee recovering from a leg injury may sit with his or her leg raised by the seashore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process.”

Second, employees have a protected right to express their intent to take FMLA leave in the future. Evidence that MWRA was displeased with DaPrato’s intent to take leave for knee surgery, as well as his vacation while on leave, worked against them in the trial. Email is valid evidence: the HR director’s and manager’s comments (“Is he serious” and “OMG”) in response to DaPrato’s mention of future leave could easily have been interpreted as hostility toward his use of leave.

Finally, if an employer terminates an employee, they must be able to prove that termination was based on evidence they possessed at the time. During the trial, MWRA presented photos of DaPrato standing on a fishing boat in Mexico, holding up a large fish he had caught. MWRA attempted to use the photos as evidence that DaPrato had abused his leave privileges, but they did not possess the photos when they terminated DaPrato’s employment. Though the court acknowledged that the photos raised “legitimate concerns” about DaPrato’s truthfulness regarding his condition and the scope of his vacation activities, it still ruled in DaPrato’s favor.

The DaPrato case is cautionary for employers facing similar situations. Should you face a question of FMLA abuse in the future, contact legal counsel, as FMLA rights and enforcement can create tricky situations for employers.


1 482 Mass. 375 (2019).

Featured Image by Rebecca Sidebotham.

Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations