In a recent case involving the largest telecommunications union in the U.S. a court ruled the company could require employees to remain in the area while on FMLA leave!! The case of Pellegrino v. CWA, W.D. Pa., 5-19-11, gave employers the “right” to dictate the movements of those on medical leave.
CWA has a sickness and absenteeism policy in it’s employee manual requiring employees that accept wage replacement benefits while on FMLA to stay in the area where they live.
Employees can ONLY leave the immediate vicinity of their homes for “ordinary and necessary activities directly related to personal or family needs.” If NOT they MUST get written permission from the CWA. Denise Pellegrino requested and was granted FMLA for a hysterectomy.
Two weeks after surgery she took a trip to Cancun while still being on FMLA and getting sick pay.
Denise a clerical worker returned to work only to be terminated because she “violated the workplace policy that forbids unapproved travel while receiving sick leave pay.” Ms. Pellegrino filed suit against CWA alleging the firing was a violation of her FMLA rights. Her doctor supported her contention the Cancun trip was NOT “inconsistent with her recovery.”
The court disagreed and ruled on the side of CWA. The court determined the “FMLA does not prohibit employers form enacting policies to prevent employees from abusing leave…such as requiring them to get approval before leaving the area…as long as such policies “do not conflict with or diminish the rights provided by the FMLA.””
I believe this ruling can and will be challenged and I believe it should be. To allow employers to decide what is “ordinary and necessary” undermines the credibility of the certification given the employee by her doctor. It also opens the door to some potential Constitution issues such as “Freedom Of Movements”?!?
Here are three things employees and career seekers need to learn from this case.
1) Make sure you have a clear understanding of your employers FMLA policy including the language referring to absenteeism and sickness policy. If your company takes adverse action against you they better have clear guidelines in their leave policy to justify it.
2) Make sure your employer is consistent in applying its FMLA, sick and absenteeism policy. If not your boss may be handing you a successful lawsuit.
3) Make sure that you have been provided any and all updated FMLA, absenteeism and sick policy info from your boss. If your employer fails to provide you with this documentation and takes takes adverse action, it could prove to be a violation of your FMLA rights.
Learn more about FMLA leave.
**What matters to me….is to help my fellow employee!**