The Family and Medical Leave Act (FMLA) was enacted into law to help people who are sick or who have family members who are sick take time to address the illness and not lose their job. A recent case, Kirby Smith v. Yelp (No. 20 CV 1166, United States District Court, N.D. Illinois, Eastern Division), illustrated a violation of that concept.

The introduction to the court’s decision summarizes the basic story succinctly:

Defendant Yelp denied its employee, plaintiff Kirby Smith, time off to take a vacation to Thailand. A few months later, Smith’s doctor diagnosed her with sciatica and a herniated disc in her back, affecting her ability to sit for long stretches. Yelp approved her for leave under the Family and Medical Leave Act. While on FMLA leave, Smith took the trip to Thailand. After her coworkers discovered her travel and reported it to management, Smith texted a colleague that she would like to punch those coworkers. Yelp management got a hold of those texts, and fired Smith for dishonesty regarding her medical leave and violating Yelp’s antiviolence policy. Smith sues Yelp for FMLA interference and retaliation, and Yelp moves to dismiss for failure to state a claim…Yelp’s motion is granted.

Smith did not have enough accrued vacation time for the trip to Thailand. She got the FMLA leave and still went on vacation. More from the court:

Smith doesn’t argue that Yelp mistakenly believed that she took a trip. She admits that she traveled to Thailand. Rather, she insists that Yelp can’t police where she takes her FMLA leave—in other words, that her trip didn’t conflict with the intended purpose of her leave. Traveling while on FMLA leave may be consistent with the purpose of the leave under some circumstances. But here, where Smith took leave because she couldn’t sit down for prolonged stretches, the only reasonable inference to be drawn is that sitting on a plane to Thailand was clearly inconsistent with the stated purpose of her FMLA leave.


Taking a trip is not protected activity under the FMLA. The Act doesn’t bar an employer from penalizing its employee for misusing leave—it bars an employer from penalizing its employee for taking FMLA leave.

So the lesson here is:

  • FMLA is not necessarily used for vacation
  • Don’t flaunt your vacation if you do take one
  • Don’t threaten your co-workers

HT: Shaw Rosenthal