7-7-2011; Vacationing in Cancun may not be the best idea if you are utilizing FMLA for the time off and company policy frowns on such siestas

In Pellegrino v. CWA (W.D. Pa. No. 10-0098, May 19, 2011), Plaintiff Pellegrino requested leave to undergo a medical procedure on Aug. 12, 2008. In response to the request, her employer, Communications Workers of America (CWA), sent her a letter informing her of her eligibility for Family and Medical Leave Act (FMLA) leave and that, under CWA’s sick leave policy, she would be required to substitute paid leave for the period of time she qualified for FMLA benefits. Important information she appears to have missed in the sick leave policy was a provision for filtering FMLA abuse, requiring any employee who was receiving wage replacement benefits (even while on FMLA leave) to remain in the immediate vicinity of his or her home during periods of the leave. Exceptions to this rule were only provided if the employee (1) needed medical treatment, (2) needed to attend to “ordinary and necessary activities directly related to personal or family needs,” or (3) received written permission from CWA.

Plaintiff Pellegrino underwent surgery on Oct. 2, 2008, and both her FMLA leave and sick leave time/pay commenced that same day. She then went to Cancun on October 16, 2008 without permission from her employer and was subsequently terminated for violating the paid sick leave provisions in CWA’s policy when the employer learned of the trip. Thereafter, plaintiff brought a civil action against CWA for interference with her FMLA rights, which required plaintiff to show that: (1) she was entitled to benefits under the FMLA, and (2) CWA illegitimately prevented her from obtaining those benefits.

The Court acknowledged she was entitled to FMLA benefits to undergo her medical procedure, the court addressed only whether CWA improperly prevented her from obtaining those benefits when it terminated her during the course of her leave. However the Court also noted CWA did not interfere with plaintiff’s FMLA leave since FMLA does not shield an employee from an employment action an employer would have taken irrespective of the employee’s status under the FMLA which included enforcing a restriction on unapproved travel that would have applied whether the employee had been out on FMLA leave or non-FMLA covered sick or disability leave. Because CWA’s decision to enforce its sick leave policy was a “legitimate exercise of its prerogative separate from plaintiff’s use of her FMLA leave,” the court in dismissed Pellegrino’s FMLA interference claim as a matter of law.

Pellegrino also made an argument that the employer’s sick leave policy didn’t apply to her because the Collective Bargaining Agreement governed, but that also failed since the CWA sick leave policy and the CBA terms did not conflict and the Court noted that because the CBA was silent on the issue of travel restrictions when employees took leave, this silence did not make the employer’s policy inapplicable to her.

Summer is here. It may be a good time to review your policies to ensure that your workforce is keeping the company productive or legitimately recuperating rather than simply recreating. This article was written by Shawn R. Biery, J. D. who can be reached at sbiery@keefe-law.com. Feel free to post comments on our blog at: http://keefe-law.com/kcablog.html