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The cure for FMLA pains … a Cancun vacation?

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in Centerpiece,FMLA Guidelines,Human Resources

by Mindy Chapman, Esq.

Ever wonder if your employees out on FMLA leave are really sitting on a beach sipping a drink with a little umbrella in it? If you think employees are violating your policies, what can you do? One court ruled last month that you can fire such an employee ... but first make sure you have the right policies in place.

Case in point: The Communications Workers of America (CWA), the country’s largest telecom union, has an absenteeism policy that requires CWA employees who accept wage replacement benefits while on medical leave to remain in the immediate vicinity of their homes.

Employees may leave the area only for medical treatment or to attend “ordinary and necessary activities directly related to personal or family needs.” Otherwise, they’d need written permission from the CWA.

Denise Pellegrino, a clerical CWA employee in Pennsylvania, was granted FMLA leave for a hysterectomy. 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. She sued, 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.)

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. Make sure the language of the policy does not violate the employee’s FMLA rights.

2. Distribute the policy. The court noted that this employee 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 consistently across the workforce. Otherwise, you might open yourself to a discrimination claim.

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Author: Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.

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