CHICAGO—A federal appeals court in Chicago has twice sided with employers who used surveillance to observe employees suspected of abusing the Family Medical and Leave Act.

According to a July 21 decision by the 7th U.S. Circuit Court of Appeals, Diana L. Vail worked a night shift at the Raybestos Products Co., a car parts manufacturer in Crawfordsville, Ind.

She was approved for 33 days of intermittent medical leave from May through September 2005 because of migraines. Ms. Vail would call just before her evening shift to tell her supervisor she would not be coming in, according to the decision.

As the summer progressed, Ms. Vail's use of her leave became more frequent. Her supervisors became suspicious because they knew her husband had a lawn mowing business and that she would help him.

They knew her husband's customers included several cemeteries, "which generally preferred to have their lawn mowing done at the quiet times during the day throughout the workweek—less a courtesy to its residents than to those who would come to visit," and that the summer and fall were "prime mowing seasons."

Raybestos hired an off-duty police sergeant to investigate. Ms. Vail took medical leave for her Oct. 6, 2005, evening shift, and the next morning was observed mowing at a cemetery. She was terminated, and then filed suit, claiming, in part, that the termination violated FMLA.

The information gleaned from the reconnaissance was sufficient to give Raybestos an "honest suspicion" that Ms. Vail was not using her leave for its intended purpose, said a three-judge panel in affirming a lower court's decision that dismissed her case.

While conducting surveillance of an employee "may not be preferred employer behavior, employers have certainly gone further" and hired investigators to videotape employees on FMLA leave, the appeals court said in its ruling.

In a 2006 case also before the Chicago appeals court, Harold Crouch vs. Whirlpool Corp., Mr. Crouch had been working at Whirlpool, which is based in Benton Harbor, Mich., since 2000, while his fiancee had been there since 1969. The couple attempted to coordinate their vacation times, which are based on seniority. While his fiancee received all of her requested vacation time, Mr. Crouch was denied most of his.

In both 2002 and 2003, he filed for disability leave for the same periods for which he had unsuccessfully sought vacation time, both times claiming a knee injured during yardwork.

A supervisor noticed this and the company hired a private investigator, who videotaped Mr. Crouch doing yardwork during the period he was out on disability.

Mr. Crouch was terminated and sued, claiming violation of the FMLA. "Whirlpool's honest suspicion forecloses Crouch's FMLA claim," said the three-judge panel, which upheld a lower court ruling dismissing the case.

Diana L. Vail vs. Raybestos Products Co., 7th U.S. Circuit Court of Appeals, No. 07-3621, July 21, 2008; Harold Crouch vs. Whirlpool Corp., 7th U.S. Circuit Court of Appeals, No. 05-3105; April 20, 2006.