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Third Circuit Holds That Employer Can Terminate Employee on FMLA for Violation of Paid Sick Leave Policy by Traveling Far From Home During Leave Without Permission

By on August 16, 2012 in FMLA with 0 Comments

Someone who is on FMLA is still subject to other leave policies like call-in policies and paid sick leave policies prohibiting distant travel

The case of Denise Pellegrino v. Communications Workers of America, AFL-CIO, 2012 U.S. App. Lexis 7902 (3d. Circuit 2012) offers important guidance for employers who struggle to deal with the FMLA in the context of a paid sick leave policy.

Denise Pellegrino began work with the CWA in 2005.  She received an employment manual with copies of certain policies regarding FMLA and sick leave.  In 2006, the CWA distributed a new employment manual, which included a revised Sickness and Absenteeism Policy.  This policy dealt with the FMLA and sick leave separately. The sick leave policy required that employees on paid sick leave “remain in the immediate vicinity of their home during the period of such leave.”  Exceptions were permitted if a request for travel was submitted in writing in advance. The FMLA policy contained no such restriction.

In August 2008, Pellegrino notified CWA that she had to undergo surgery.  CWA gave Pellegrino a letter outlining her rights and obligations under the FMLA.  It also said in bold, “The process of medical certification for FMLA leave is completely separate from the process for approving leaves for continued sick pay treatment under CWA’s sick leave policy.”  Two forms were given to plaintiff, one for FMLA leave and the other for paid sick leave.  In the WH-381 form, it stated in large type: “You will be required to substitute paid leave under CWA’s sick leave policy for the period of time that you qualify for such benefits.”

Pellegrino submitted the required certification, and her leave was granted to commence October 2nd, the date of her surgery, and continuing for four weeks.  She received full salary concurrent with her FMLA leave as her sick leave was run concurrently.  About two weeks after her surgery she and three friends traveled to Cancun, Mexico for a week.  She did not notify CWA of her trip or seek permission to go.  When she returned, CWA met with her and terminated her employment for violation of the sick leave policy.

Plaintiff argued that the termination violated her rights under the FMLA.  The Court disagreed stating that Pellegrino was bound by CWA’s sick leave policy so long as it was not inconsistent with the FMLA.  The Court said there was no inconsistency because “[t]he sick leave policy ‘merely sets forth obligations of employees who are on leave, regardless of whether the leave is pursuant to the FMLA.’” citing Callison v. City of Phila., 430 F.3d 117 (3d. Cir. 2005).  The Court said that nothing in the FMLA prevents employers from taking steps to make sure leave is not abused.  A policy that forbids vacations during paid sick leave is consistent with the FMLA.

The Court also rejected Pellegrino’s argument that she never got notice of the specific paid leave policy at issue.  The CWA showed that it had given all employees the 2006 sick leave policy.  Email records showed that she had been included in the recipient list for the policy.

The case is important because it is one of few FMLA cases that deals with the employer’s right to enforce a paid sick leave policy across the board, including those who are on FMLA.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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