One of the things that ages human resources executives and directors most is their ongoing attempt to control FMLA leave abuse by employees. A recent decision by a federal trial court in Pennsylvania offers a word of encouragement.
In Pellegrino v. Communication Workers of America, slip op., Case No. 10-cv-00098-GLL (W.D. Pa. May 18, 2011), the employee had taken concurrent FMLA leave and paid sick leave for a hysterectomy. During her leave, she had traveled without authorization to Cancún, Mexico, in violation of her union-employer’s Sickness and Absenteeism policy. Under that policy, employees who accepted sick pay for any leave time taken were required to remain “in the immediate vicinity of their homes” during their leaves. The policy provided for some limited exceptions, but none for vacation travel without permission.
Two weeks after her hysterectomy surgery, and while on both unpaid FMLA leave and paid sick leave, the employee had gone to Cancún for a week and without either informing her employer that she would be out of the country or requesting vacation time or permission to travel during her sick leave. When she had returned from her week away, the employer had fired her for having traveled while on FMLA and paid sick leave in violation of the employer’s leave policies and work rules.
The employee sued the employer under the “interference” provision of the FMLA, which makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA. 29 U.S.C. §2615(a)(1). The employer argued that it would have taken the same action against the employee regardless of her FMLA leave status because its restriction on unapproved travel during a leave would have applied whether she had been on FMLA leave or not.
The court agreed with the employer: “Ultimately, [the employer’s] choice to enforce its sickness and absenteeism policy was a legitimate exercise of employer prerogative separate from [the employee’s] use of FMLA leave.” Id. at 20. Furthermore, the court found that the employer’s termination of the employee had been “for a reason unrelated to [her FMLA] leave” and, therefore, that she was not entitled to a benefit -- that is, reinstatement – to which she would not otherwise have been entitled had she not taken FMLA leave. Slip op. at 13.
The significance of the court’s opinion is that it leaves employers free under the FMLA to put in place and to enforce reasonable leave-related rules, “so long as [those rules] do not conflict with or diminish the rights provided by the FMLA”. Id. at 13-14, citing the decision of the U.S. Court of Appeals for the Third Circuit in Callison v. City of Philadelphia, 430 F.3d 117, 120-21 (3rd Cir. 2005). Although the Pellegrino court’s authority is limited to its jurisdiction in western Pennsylvania, we believe its reasoning is sound and is likely to be deemed persuasive by other courts in cases with similar facts. If so, employers should be found entitled to include in their leave policies or their work rules requirements and limitations on FMLA leave reasonably designed to protect them from leave abuse. The caveat is that no such requirement or limitation may “discourage or prevent” employees from taking FMLA leave. Therefore, crafting a policy’s requirements and limitations should be done very carefully and with the advice of legal counsel.