Cheeseburger in Paradise

The FMLA and Opportunistic Employees

June 3, 2011

With the summer months upon us, employees are spending less time thinking about upcoming quarterly reports and more time dreaming of ocean front resorts, parks and trips to the mountains. As a result, employers find themselves facing increasing requests for time off.

In a nation with no legal obligation to provide vacation – at least federally – employees often become creative, invariably abusing forms of mandated leave as a proxy for vacation time. Fortunately, as demonstrated by a May 2011 U.S. District Court case in Pennsylvania, courts in recent years have recognized that employers are entitled to some options when it comes to protecting themselves from opportunistic employees.

In Pellegrino v. CWA (W.D. Pa. 2011), plaintiff Denise 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.

Interestingly, CWA’s sick leave policy contained a unique 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.

Following approval of her FMLA leave, plaintiff underwent surgery on Oct. 2, 2008, and both her FMLA leave and sick leave time/pay commenced that same day. However, shortly after undergoing surgery, and without permission from her employer, plaintiff traveled to Cancun, Mexico on Oct. 16, 2008, staying for approximately a week. When plaintiff’s employer learned of her trip, she was terminated for violating the paid sick leave provisions in CWA’s policy.

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. Acknowledging that plaintiff 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.

In determining that CWA did not interfere with plaintiff’s FMLA leave, the court noted that the FMLA does not shield an employee from an employment action an employer would have taken irrespective of the employee’s status under the FMLA. This includes 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 Pellegrino dismissed plaintiff’s FMLA interference claim as a matter of law.

In the end, while most employees are honest about their leave requests, some are not – and it is often the few “bad” employees who ruin it for everyone else. That said, as the Pellegrino court reminds us, employers are not left without recourse and should remember the following principles when taking preventative steps to minimize FMLA abuse:

  • The FMLA does not shield an employee from an employment action an employer would take irrespective of the employee’s status under the FMLA (provided of course that the employer can prove this if challenged).
  • The FMLA does not shield an employee from termination if an employee is allegedly involved in misconduct related to the use of FMLA leave.
  • FMLA entitlements do not prevent an employer from instituting policies to prevent the abuse of FMLA leave so long as the policies do not conflict with or diminish rights provided by the FMLA.

For additional information regarding effective strategies for dealing with FMLA and other leave abuse, please contact the author or any other member of the McGuireWoods Labor and Employment Group.