Article courtesy of SBAM Approved Partner ASE
By Michael J. Burns
Employees who take leave under the Family and Medical Leave Act may think they can also hop off for a recuperative vacation during their approved leaves. Is this permissible? It depends on whether your policy addresses the subject or not.
A California federal court looked at the case of Denise Pellegrino. Ms. Pellegrino was employed by one of the largest unions in the country, the Communications Workers of America (CWA). The CWA’s own FMLA and sick leave policies included these two requirements, among others:
- Employees on paid sick leave must “remain in the immediate vicinity of their home during the period of such a leave,” unless they obtain prior written permission to travel.
- Employees on FMLA leave must use their paid sick leave concurrently until it runs out
The latter requirement is a common policy that federal law has deemed OK.
Management advocates might—but should not—find it ironic that a union would construct such a well-tailored and restrictive policy for its own employees.
In any case, Ms. Pellegrino spent the last two weeks of her FMLA-approved leave in Cancun, Mexico. When she returned the CWA terminated her employment for violation of its leave policy. Knowing her rights, Ms. Pellegrino then sued the CWA for interfering with her FMLA leave rights.
The lower court ruled that the CWA had not abused Ms. Pellegrino’s FMLA rights, and the Third Circuit Court of Appeals agreed. The Appeals Court stated that because Ms. Pellegrino was on both FMLA and the CWA’s sick leave, she was bound by the rules of the sick leave policy which restricted travel while out on such leave.
There were three keys that swung the case in favor of the CWA:
- It was able to prove it had provided Pellegrino with a DOL-approved form explaining her FMLA rights.
- It produced an email it had sent to Pellegrino that explained its sick leave policy.
- The sick leave policy was enforced consistently across the organization.
It is important for employers to review their policies to ensure that they state all the requirements and restrictions that the organization my find necessary for its fair administration. It is equally important that they administer the programs according to those rules, consistently, across the organization. Courts have consistently ruled in favor of employers that have well documented leave policies.
ASE can help with employee handbook policy review and development. ASE also offers training for HR professionals and others on handbook review and development. SBAM members receive special discounts – find out more.