FMLA / Non FMLA Attendance Policies
Taking FMLA Leave Does Not Affect Employee’s Obligations Under Non-FMLA Attendance Policies
Employment termination during an employee’s leave under the Family and Medical Leave Act (FMLA) may constitute “interference” with that leave. However, an employer typically does not violate the FMLA if it terminates an employee for failing to comply with the company’s policies regarding absences, even if those absences occur during a protected FMLA leave. A recent decision by the 3d U.S. Circuit Court of Appeals reminds us that the FMLA is not a law that can remedy an employee’s failure to follow a company’s sick leave policies. Pellegrino v. Communications Workers of America, AFL-CIO, CLC, 3d Cir., No.11-2639, April 19, 2012.
Denise Pellegrino began her employment with the Communications Workers of America (CWA) in 2005. In 2006, the CWA revised its Sickness & Absenteeism Policy to require employees on paid sick leave to “remain in the immediate vicinity of their home during the period of such a leave,” unless permission was obtained in writing prior to such travel. Under the 2006 CWA policies, FMLA leave ran concurrently with any available paid sick leave.
In August 2008, Pellegrino requested FMLA leave for surgery. Paperwork was provided to Pellegrino, informing her of her rights and obligations under the FMLA. She also was provided with two separate medical certification forms – one for FMLA and the other for paid sick leave – and was notified that she was “required to substitute paid leave under CWA’s sick leave policies” for the period of time during which she qualified for sick leave benefits. Pellegrino submitted both certificates, and was granted four weeks of FMLA leave, which was to run concurrently with four weeks of available paid sick leave. Pellegrino began her leave on October 2, 2008, the date of her surgery; she received full pay and benefits under the CWA sick leave policy.
About two weeks after the surgery, and without prior notice to CWA, Pellegrino traveled to Cancun, Mexico with three other individuals, and spent a week there. When she returned, Pellegrino was asked to meet with the administrative director of her CWA office, who asked about the trip. After Pellegrino admitted to having taken the trip, her employment was terminated, based upon violation of CWA’s sick leave policy.
Pellegrino sued CWA in January 2010, alleging interference with her rights under the FMLA. The district court found that because Pellegrino had been on both FMLA leave and paid sick leave, a combination allowed by law, she remained bound by CWA’s sick leave policy. Because that sick leave policy was not inconsistent with the FMLA, CWA did not interfere with Pellegrino’s FMLA rights. On appeal, the Third Circuit agreed with that rationale. Although Pellegrino protested that she had not received sufficient notice of her obligation under the sick leave policy, the CWA submitted evidence that it had: (1) provided a DOL-approved form to Pellegrino regarding FMLA; and (2) e-mailed the sick leave policy to Pellegrino in the past. While it took the opportunity to call Pellegrino’s termination “harsh,” and even viewing the facts in the light most favorable to Pellegrino, the Third Circuit agreed with the district court that CWA did not interfere with Pellegrino’s rights under the FMLA.
THE MESSAGE TO EMPLOYERS IS CLEAR: if a written sick and absence policy is disseminated to employees, and if that dissemination is fully documented, employers have a legitimate expectation that discipline imposed for violation of that policy will be upheld, even if the absences were taken pursuant to leave under the FMLA, so long as the absence policy is not inconsistent with the terms and purpose of the FMLA.