Can FMLA Pains be Cured in Cancun?

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in Case In Point

Ever wonder if your employees out on FMLA leave are really sitting on a beach sipping a drink with a little umbrella in it? Nearly half of all HR professionals say they’ve approved FMLA leave requests even though they believe the requests weren’t legitimate, according to a Society for Human Resource Management (SHRM) survey.

If you think employees are violating your policies, what can you do? One court ruled last week that you can fire such an employee … but first make sure you have the right policies in place.

Case in Point: The corporate office for the Communications Workers of America, the country’s largest telecom union, distributes a policy manual to employees that includes a sickness and absenteeism policy. It requires employees who accept wage replacement benefits while on medical leave to remain in the immediate vicinity of their homes.

Employees may only leave the area for medical treatment or to attend to “ordinary and necessary activities directly related to personal or family needs.” Otherwise, they’d need written permission from CWA. The purpose of this policy was to limit abuse of paid medical leave.

Denise Pellegrino, a clerical worker for the CWA in Pennsylvania, requested and was granted FMLA leave for a hysterectomy. She was also receiving sick pay concurrently. Two weeks after her surgery, she left for a one-week vacation in Cancun while still out on FMLA leave and receiving sick pay.

When Pellegrino returned to work, she was fired. CWA’s reasoning: She violated the workplace policy that forbids unapproved travel while receiving sick leave pay.

Pellegrino sued CWA, saying the termination interfered with her FMLA rights. She even got her doctor to write a note that her Cancun visit “was not inconsistent with her recovery.”

Result: The court ruled in favor of the CWA, saying the FMLA does not prohibit employers from enacting policies to prevent employees from abusing leave—such as requiring them to get approval before leaving the area—as long as such policies “do not conflict with or diminish the rights provided by the FMLA.” (Pellegrino v. CWA, W.D. Pa., 5/19/11).

3 Lessons Learned … Without Going to Court

1. Have a clear sickness and absenteeism policy. The employer could not fire the employee without such a policy. If it did, the termination could have been seen as an interference with the employee’s FMLA rights. Make sure the language of the policy does not violate the employee’s FMLA rights.

2. Distribute the policy. The court noted the employee in this case had received the policy. Policy distribution may be considered as part of a legal defense, so be sure to get your policies in front of employees.

3. Enforce the policy. But, make sure you do it consistently across the workforce. Otherwise, you might open yourself to a discrimination claim.

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