How to prevent leave double-dipping: Prohibit vacation travel during paid FMLA leave — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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How to prevent leave double-dipping: Prohibit vacation travel during paid FMLA leave

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in Firing,FMLA Guidelines,Human Resources

Many employers provide paid sick leave for employees. They generally want employees to take that leave only when necessary, for valid health reasons. They certainly don’t want to see “sick” employees returning to work tanned and rested because they took a vacation while collecting sick pay.

It’s perfectly legitimate to prohibit recreational travel during any approved, paid sick leave.

If you also happen to substitute paid sick leave for unpaid FMLA leave, you can still enforce the same no-vacations policy.

You can even fire an employee for violating the rule without interfering with her FMLA rights, according to a recent decision by the 3rd Circuit Court of Appeals.

Recent case: Denise worked on the staff of the Communications Workers of America. The union provided paid sick leave. It told employees that paid sick time would count against their FMLA entitlement if their illness or injury qualified as a serious health condition covered by the FMLA.

The union also told employees that those using paid sick leave must “remain in the immediate vicinity of their home during the period of such leave.” Employees who wanted to wander elsewhere had to get prior approval.

Denise informed the union that she needed surgery. She got an FMLA form to fill out as well as a form requesting paid sick leave. Both were approved for four weeks, and the union told Denise her FMLA leave would run concurrently with paid sick leave.

Denise had the surgery—and then joined three friends on a weeklong trip to Cancun, Mexico.

Someone who saw her at the airport reported the sighting to the union. Denise was fired when she returned and while still on leave.

She sued, alleging that the union interfered with her FMLA leave rights by firing her for traveling.

The 3rd Circuit Court of Appeals disagreed. It said that employers can require employees to remain home during sick leave. The fact that the leave ran concurrently with FMLA leave didn’t make the no-vacation rule illegal. (Pellegrino v. Communications Workers of America, No. 11-2639, 3rd Cir., 2012)

Final note: The appeals court noted that employees on FMLA leave can be required to call in every day or report any departures from their homes while on leave if a company policy requires all workers on sick leave to do so.

It didn’t see any difference between that and prohibiting employees from vacationing while collecting a paycheck and enjoying the FMLA’s protections.

{ 3 comments… read them below or add one }

Anonymous April 27, 2016 at 1:03 am

**** you!!!! What really posses me off about your snarky article is how you seem to delight in others suffering. I’ve had a vacation planned for almost a year across country. I broke my wrist and can’t do my job because it requires heavy lifting. Sitting at a pool in California does not require heavy lifting and I’ve had this planned and paid for for a while. There may be some bad apples out there, but a “stay at home policy” is BS. I’m sure I wrecked my expensive bike and shattered my wrist and may need surgery because I wanted to extend my vacation.


Suzieq August 9, 2016 at 10:49 pm

I agree. I’m scheduled for hernia repair surgery and will be off 6 weeks due to lifting restrictions. Traveling and relaxing with with my family does not involve physical lifting (10pound with wt limit) so why should I not be able to try somewhere and relax my body and heal?


Stacey July 23, 2012 at 1:28 pm

Does this also apply if employee’s vacation and sick leave are grouped together in a PTO or paid time off bank?


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