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Court Rules it is OK to Make Employees Obey Paid Sick Leave Policy Even While on FMLA


A recent victory for employers in U.S. Court of Appeals for the Third Circuit (Philadelphia) shows employers do have rights when it comes to enacting policies to prevent Family Medical Leave Act (FMLA) leave abuse.

Denise Pellegrino was an employee of the Communications Workers of America (CWA) since 2005. The CWA had two policies regarding FMLA:

  1. 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, and
  2. Employees on FMLA leave must use their paid sick leave concurrently until it runs out (a common policy — and one federal law has deemed OK).

Pellegrino was approved for FMLA leave to have surgery. At the time, she was told she had four weeks of paid sick leave available to her. Two weeks after her surgery, well before she had exhausted her paid sick leave, Pellegrino traveled to Cancun, Mexico.

When she returned, she was terminated for violating her employer's sick leave policy. Pellegrino then turned around and sued CWA for FMLA interference. Earlier this year, a district court ruled that the employer had not interfered with her FMLA leave, a ruling upheld on appeal in April (case).

Pellegrino was on both FMLA leave and paid sick leave, as the law allows. Therefore, she remained bound by CWA's sick leave policy so long as it was not inconsistent with the FMLA. CWA's sick leave policy was not inconsistent with the FMLA; hence, CWA did not interfere with Pellegrino's FMLA rights by enforcing it against her. The sick leave policy "merely sets forth obligations of employees who are on leave, regardless of whether the leave is pursuant to the FMLA. Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.

Three keys to the case that swung it in favor of Communications Workers of America:

  1. It was able to prove it had provided Pellegrino with a DOL-approved form explaining her FMLA rights
  2. It presented an email it had sent to Pellegrino that explained its sick leave policy, and
  3. The sick leave policy was enforced consistently across the organization.

Want to know more? Read the full article by Christian Schappel at HR Morning