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May 23, 2011

By Eric B. Meyer

Can a company create and enforce a policy that requires employees on paid sick leave to remain close to their homes, unless they obtain the company’s permission?

Would that policy infringe on an employee’s FMLA rights?

Good questions.

Employees abuse FMLA? Really?

The case is Pellegrino v. Communications Workers of America, AFL-CIO, CLC.

On August 12, 2008, Denise Pellegrino, a CWA employee, informed CWA that she needed a hysterectomy. CWA approved Ms. Pellegrino for FMLA. Pellegrino scheduled her hysterectomy surgery for October 2, 2008 and commenced FMLA leave.

Now, CWA had a handbook policy that provided eligible employees on medical leave with sick pay. However, the rule had two catches. First, CWA had the right to require that employees get examined by a doctor of CWA’s choosing. Second, employees had to remaining in the immediate vicinity of their homes while on sick leave.

While out on FMLA, Ms. Pellegrino received sick pay. During her leave, however, Ms. Pellegrino travelled to Cancun, Mexico, for a week, without telling CWA. Upon her return, CWA fired Ms. Pellegrino for what it claimed was a violation of its sick pay rules. Ms. Pellegrino later sued, claiming that CWA had interfered with her rights under the FMLA.

FMLA doesn’t save employees who would have been fired anyway

To prove an interference claim, a plaintiff must prove two elements:

  1. that she was entitled to benefits under the FMLA; and,
  2. that the employer illegitimately prevented her from obtaining those benefits.

Ms. Pellegrino argued that her discharge, while on FMLA, interfered with her ability to use FMLA leave. CWA argued that it fired her for violating its work rules. And regardless of whether Ms. Pellegrino had taken FMLA, it would have fired her.

While the court agreed that Ms. Pellegrino’s leave was FMLA-protected, it found no evidence that CWA acted improperly. The court underscored that companies have the right to create and enforce leave policies, to the extent that they do not abridge an employee’s rights under the FMLA. This is especially true if the leave policy is designed to ensure that employees do not abuse FMLA leave.

Furthermore, in a footnote, the court recognized that the CWA could have fired Ms. Pellegrino for traveling to Mexico, even without a written policy:

No reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country.”

Heck, the court even added that an employer may not even need to prove abuse of FMLA leave, but rather the honest belief that an employee is abusing FMLA leave.

Ways that employers can limit FMLA abuse

Among them:

  1. Make sure that employees who request FMLA are, in fact, FMLA eligible.
  2. Require that employees who request FMLA provide proper medical certification.
  3. Recertify employees every 30 days or when the minimum duration of the condition expires.
  4. Evenhandedly enforce call-in rules.
  5. Continue to enforce other applicable leave rules insofar as they did not abridge the employees’ FMLA rights.

Most importantly, however, if you believe that an employee is abusing FMLA, confront the employee before taking any employment action. Give the employee a chance to explain what she has done before determining whether the employee has actually abused her FMLA leave. Only if the employee does not have a good excuse should the employer consider taking action.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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