Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Friday, June 10, 2011

Policy limits on vacation travel during FMLA leave


Policy limits on vacation travel during FMLA leave
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegrino filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgment to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Mr. Bosland Comments: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.  
   
Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.