How to prevent leave double-dipping: Prohibit vacation travel during paid FMLA leave
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.
Advantages of running FMLA, sick leave together
Some employers wonder why they should bother running paid sick time off concurrently with FMLA leave. The FMLA clearly allows employers to do so and there’s little downside.
The practice ensures that employees only get 12 weeks for an FMLA covered illness as protected leave.
Here’s how it works: If you allowed employees to use up paid sick leave first, their FMLA entitlement would start only when their paid leave ended. As a practical matter, that would extend their job-protected leave. But if you run the leave concurrently, employees lose their job-protected status at the end of the first 12 weeks off.
