When: Wednesday, August 31, 2011 (12:00 – 1:15 p.m. CDT)

On Wednesday, August 31, I will host a complimentary webinar addressing key questions and topics essential to understanding an employer’s obligation to provide leave as a reasonable accommodation under the ADA.  I am extremely pleased to be joined by EEOC Regional Attorney John Hendrickson, who has led the EEOC’s litigation regarding “leave” as a reasonable accommodation.

This webinar comes at a critical time for employers. One of the most frequent inquiries I receive from clients involves the extent to which they must provide a leave of absence to an employee with a medical condition or disability — whether before or after the employee’s FMLA leave has expired.  Employers now are even more anxious about this issue in light of the EEOC’s aggressive position that “automatic termination” provisions are invalid.  As a result, employers are left confused as to their obligations under the law.

John and I will hit these issues head on with the hope that employers leave with a better understanding of their obligations in this area of the law.  We will cover questions such as:

  • When must an employer consider leave as a reasonable accommodation?
  • What are an employer’s obligations to an employee when FMLA leave expires?
  • What must an employer do to come into compliance with the EEOC’s position on “automatic termination” provisions?
  • What is the takeaway from the EEOC’s litigation involving automatic termination provisions (e.g., EEOC v. Sears; EEOC v. Supervalu, etc.)?
  • When is a leave of absence not considered “reasonable” or an undue hardship?
  • How should employers and employee best communicate about the need for leave?

 

For several weeks now, attorneys and legal academics across the country have dissected the U.S. Supreme Court’s Wal-Mart v. Dukes (pdf) decision, which shut the door to a 1.5 million class of current and former female Wal-Mart employees who are claiming that they were denied pay increases and promotions because of their gender.  In striking down class certification, the Supremes held that there was no commonality among the member of the class, that is, no “glue” that tied all of their discrimination claims together.

The Wal-Mart decision underscores the heavy burden plaintiffs have when pursuing a case on behalf of others in a class action.  Surely, employers will use the Wal-Mart decision to fight class certification on the basis that the members of the proposed class lacks commonality.  In a post-Wal-Mart era, plaintiffs seeking to advance a class action will be forced to narrow the scope of the class and focus on policies and practices that are specific and clearly establish a discriminatory effect on a class of individuals.

Might an employer’s FMLA practices provide just what a plaintiff needs to withstand the scrutiny of the Supreme Court’s exacting standards for class certification?  Unlike many other statutes, the FMLA requires employers to adhere to a multitude of exacting rules, any one of which can trap an employer.  If an employer’s FMLA administration runs afoul of the FMLA, it could prove to be the “glue” that the Supreme Court insists is required to tie together the claims of an entire class.  Whereas the Wal-Mart class was rejected because the plaintiffs pointed to rather amorphous, vague policies of discrimination as the basis for their class action, it seems that a class of plaintiffs may have an easier time attacking a specific FMLA policy or practice whose effect creates harm across an entire group of employees.

Two recently filed proposed class actions suggest that at least some plaintiff-side employment attorneys are thinking the same thing:

  • Last week, two former AT&T employees filed a proposed FMLA class action in federal court in San Francisco, alleging that AT&T maintains a “total absence policy,” whereby FMLA-protected absences are counted against an employee just like any other absence.  In Beard and Guerrero v. AT&T (pdf), Andre Beard and Gloribel Guerrero allege that AT&T “blacklists” employees when they reach the bottom 30% of the Company’s monthly absence calculations.  Thereafter, the plaintiffs claim that employees in this category are harassed, denied promotional opportunities and “targeted” for termination.  Perhaps taking a cue from the Wal-Mart holding, the plaintiffs propose a narrowly-defined class: non-managerial and first-level managers at the Company’s call and collection centers who took FMLA leave and were in the bottom 30%.
  • Earlier this year, a proposed class of current and former Sysco employees filed suit in federal court in Chicago, claiming that the Company (through its third-party administrator, Work & Well) has continuously violated the FMLA by insisting that employees provide more medical information than is legally required in the FMLA medical certification and clarification process. In Arango v. Sysco Chicago, Inc. and Work & Well, Inc. (pdf), the plaintiffs claim that Sysco requires its employees to provide medical information such as their prescribed medications, dates of upcoming doctor appointments and detailed information regarding any medical procedures performed.  When employees do not provide the requisite information, the plaintiffs claim that Sysco denies FMLA leave, designates the related absence as unexcused and subjects the employees to a variety of adverse employment actions, up to and typically including termination.  Discovery in this case has just begun.

I share these lawsuits not to suggest that they have any merit or that they are even worthy of class certification.  It’s much too early to tell.  Moreover, the employers in these cases have plenty of good arguments to make, and the discovery process will bear that out.  However, these lawsuits simply illustrate the potential for a surge in FMLA class actions as plaintiffs’ attorneys get their hands around the Wal-Mart mandate.

Insights for Employers

So, what is an employer to do?  Several suggestions come to mind:

  1. It is imperative that employers consider whether (and how) their FMLA policies and procedures expose them to claims that can be advanced by a group or class of employees.  Strongly consider conducting a comprehensive audit of your entire FMLA administration to ensure your procedures do not violate the regulations and expose potential class claims.  A couple questions might help to guide your analysis:
    • Does your leave request form elicit necessary information without delving beyond the medical condition at issue?
    • Are you requesting more medical information than allowed through the FMLA’s medical certification form or the regulations?
    • Are you using the clarification/authentication process as a tool to convince the employee’s health care provider that an employee’s serious health condition is not valid or not as severe as stated in the medical certification?
    • Do you require blanket authorization to communicate with the employee’s health care provider before medical certification is due or before the employee has the opportunity to cure deficient certification?
    • What medical information do you require upon an employee’s return to work?  Does your practice comport with the FMLA’s return-to-work rules?
    • As to those employees who have taken FMLA leave, are there a disproportionate number who have been denied promotional opportunities or terminated (for unexplained reasons)?
    • How does your FMLA policy mesh with your attendance and other leave policies?  Are there inconsistencies?
  2. Closely analyze your relationship with any third-party administrator that conducts FMLA administration on your behalf.  Do you know how your TPA handles the questions above?  If not, find out.  Keep in mind that the employer ultimately is on the hook for the TPA’s FMLA administration.  Thus, the lines of communication between employer and TPA must constantly remain open so that you are able to obtain information, as necessary, and that you are partnering with the TPA on particularly difficult FMLA scenarios.
  3. I know I sound like a broken record, but ensure that your managers are properly trained on their responsibilities in FMLA administration.  Although front-line managers may play little to no role in the FMLA process, they are your eyes and ears of potential FMLA abuse.  Conversely, their inappropriate comments or poor handling of an FMLA situation may create significant liability.

Q.  We terminated an employee who has been reinstated by an arbitrator with full back pay.  Now, he has requested FMLA leave.  Are we obligated to provide leave even though he has not worked 1,250 hours in the previous 12 months?

A.  When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for leave under the Family and Medical Leave Act, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act (FLSA). 29 CFR § 825.110(c).  The issue here is whether an employer must treat the back pay award as the equivalent of “hours worked.”

This issue even has the courts conflicted.  In Plumley v. Southern Container, Inc., the First Circuit Court of Appeals ruled that several months of back pay awarded to an employee who was reinstated after successfully grieving his termination does not count towards the 1,250-hour requirement.  The court found that hours worked:

“include only those hours actually worked in the service and at the gain of the employer,” and not hours for which a wrongfully-discharged employee was compensated in the form of back pay pursuant to an arbitral award.

However, the Sixth Circuit Court of Appeals in Ricco v. Potter (pdf) held precisely the opposite.  Where an employee has been wrongfully terminated and is reinstated with back pay, the court held that an employer is obligated to to treat the period of time covered by the back pay as “hours worked” for purposes of FMLA eligibility.  In short, the court reasoned that an employee should be credited for the hours that he wanted to work but was unlawfully prevented from doing so.  Thus, under Ricco, if the back pay period provides the hours necessary to meet the 1,250-hour requirement, and the employee is otherwise eligible, he is entitled to FMLA leave.

From an anecdotal standpoint, I find that most employers tend to follow the Ricco holding, since the risk of following Plumley clearly could be more costly in light of the split in the appellate courts.  Interestingly, the courts have not addressed grievances that are settled and which result in some amount of back pay awarded to the employee.  Here, it seems as though the employer has a much stronger argument that the time covered by the back pay does not count as “hours worked,” since there is no finding of wrongful termination against the employer, and the parties otherwise have compromised their positions to achieve resolution.  In this scenario, my sense is that a court would be far less likely to count this period of time toward an employee’s 1,250 hours worked.

Earlier this month, Sen. Jon Tester (D-Mont.) introduced the Parental Bereavement Act (S. 1358), which would expand the Family and Medical Leave Act to provide job-protected leave due to the death of an employee’s son or daughter.  In a press release, Sen. Tester said he introduced the bill because the “last thing [parents] should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss.”  The Act would allow leave “because of the death of a son or daughter,” and it assumes leave would be taken in one block.  Like bonding leave, bereavement leave could be taken intermittently only if the employer agrees.  Like the FMLA itself, the bill would apply only to employers of 50 or more employees.

Although the Parental Bereavement Act currently has no co-sponsors, it likely has a better chance of passage than the recently-introduced FMLA Inclusion Act (H.R. 2364, S. 1283), which would provide unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent.  The latter bill, which has been introduced in Congress several times before, likely would not enjoy the support of a Republican-controlled House of Representatives, even if it were to pass the Senate. 

These bills are among several legislative initiatives that have been introduced in Congress over the past year to amend (and often enlarge) the scope of the FMLA.  The latest proposal under the Parental Bereavement Act is intriguing, since it builds upon a grass roots initiative imploring Congress to pass legislation providing job-protected leave upon the death of a child.  The initiative is led by Kelly Farley and Barry Kluger, both of whom lost children at a very young age.  Realizing that he could not take FMLA-protected leave upon his daughter’s death (because it is not provided for under the FMLA), Farley instead submitted FMLA paperwork seeking leave to care for his wife, who was dealing with depression in the aftermath of the tragic event.  In reality, he suggests, he needed leave to care for himself. 

GPS.jpgEarlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement’s placement of a GPS devise on a suspect’s vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment.  This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act. 

Clearly, FMLA abuse can literally turn a workplace on its head.  I have worked with many an in-house counsel and HR professional who would do just about anything — ahem, anything — to bring these FMLA abusers to justice.  But GPS?  It’s an interesting thought, but presently does not enjoy the support of any case law.  The closest the courts have come to address the issue has involved the use of private investigators to follow employees using FMLA and to report their findings to the employer.  However, as our friends in Texas point out, data from a Global Positioning System may very well be the next frontier for discovery during litigation.  For instance, might we subpoena GPS or “Onstar” data during the discovery period so as to defend our employer clients in the future?  If we can legally do so, absolutely!

Insights for Employers

In the meantime, employers, let’s not get ahead of ourselves.  Until the courts provide more guidance on the (legal) use of GPS tracking of FMLA leave, we might consider implementing these options first:

  1. Check in on the employee while he or she is on FMLA leave.  My clients have far greater success combating FMLA abuse when they maintain regular contact with an employee who is out on FMLA leave.  You need not approach this practice in a combative kind of manner — maintain a “check-in” policy for employees out on leave, and apply it in a consistent manner.  That said, be mindful of our previous post regarding Terwilliger v. Howard Memorial Hosp., in which the court found that “weekly calls” to the employee may constitute FMLA interference because it could have the effect of discouraging FMLA leave. 
  2. Certify and re-certify.  The certification process is your best tool to fight FMLA abuse.  Thus, where the pattern or duration of leave changes, obtain re-certification.
  3. Surveillance.  Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest.  Before heading down this path, make sure it is consistent with your personnel policies (courts typically want to know that employees have been on notice of the possibility of surveillance) and any applicable collective bargaining agreements.  Where a CBA is involved, surveillance arguably needs to be bargained with the union.
  4. Enforce call-in procedures and where the employee does not meet them, follow your disciplinary policies (unless the employee was unable to notify due to unusual circumstances).
  5. Personal certification.  Some employers have required as part of their usual and customary practice that an employee sign a “person certification” acknowledging that he/she took time off for FMLA or another medical reason.  If the employee fails to provide one, or takes leave inconsistent with the stated reason on the personal certification, it can be grounds for discipline.
  6. Keep training your managers.  Front-line managers often are ill-equipped to identify the possible need for FMLA leave and to interact with the employee to obtain lawful information about their medical condition to which the employer is entitled.  Employers reduce the risk of litigation and ultimately save money when they train all managers to properly manage an employee with a medical condition.

On June 27, 2011, the United States Supreme Court agreed to review an FMLA case in which the Court will decide whether a State can be sued under the Family and Medical Leave Act where the employee is seeking leave due to his or her own serious health condition.  In lawyer-speak, the question specifically involves “whether Congress constitutionally abrogated states’ 11th Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.”  Although the issue may at first blush appear to be rather dry and inconsequential to the FMLA practitioner, the decision clearly will impact whether a State can be sued under the FMLA where the issue involves one of “self-care” under the Act.  Coleman v. Maryland Court of Appeals (pdf).

In Coleman, the plaintiff was employed by the Maryland Court of Appeals and sought FMLA leave to care for his own serious health condition.  He later claimed his FMLA leave was denied in retaliation for his complaints of wrongdoing in his office.  In a decision that only an FMLA geek like me may find fascinating, the Fourth Circuit Court of Appeals ruled that Congress did not validly strip states of their “immunity” to claims under the FMLA in this specific instance.  As a result, the appellate court upheld the dismissal of the lawsuit.

The cases hinges on the interpretation of the 11th Amendment to the U.S. Constitution, which bars claims in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity.  In order to do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power.  The high court now will make the final decision.

Public employers should take note of and follow this case, which will be considered by the Court in its next term.  The parties’ briefs in the case before the Court can be found at the SCOTUSblog.

As a father of three, I tend to take interest in “feel good” stories about working parents.  However, in a recent ABA Journal article, an article about a working dad caught my attention for a far different reason.  The article highlighted Ariel Ayanna, who recently filed suit against his employer claiming he was terminated after taking FMLA leave following the birth of his son.  Ayanna v. Dechert LLP (pdf).

The Facts

Ayanna was employed as an attorney at the Boston office of Dechert LLP, an 800-attorney international law firm.  According to Ayanna, he was progressing well within the firm until he took time off under the Family and Medical Leave Act.  Prior to his leave, he had received two years of stellar performance evaluations and a $30,000 bonus in the year prior to his termination.

During his second year at the firm, Ayanna’s wife became pregnant with the couple’s second child.  This, however, was no ordinary pregnancy.  Ayanna claims in his complaint that his wife suffers from borderline personality disorder, long-term post-traumatic stress disorder, major depressive disorder and general anxiety disorder.  During the pregnancy, he claims that his wife’s personality disorder “deteriorated to the point that she attempted suicide.”  Thereafter, upon birth of his child, Ayanna utilized four weeks of paid paternity leave plus additional time provided for under the FMLA to care for mom and baby.

According to Ayanna, when he returned from FMLA leave, his employer retaliated against him by incessantly criticizing and even poking fun at him for being the primary caretaker for his children.  He also claims that the law firm assigned him less work as a result.  On the day of his termination, Dechert gave Ayanna a negative evaluation that he claims improperly called him out for “‘personal issues’ [that] interfered with his meeting the employment requirements at Dechert.”

Ayanna’s complaint is laced with a ton of conclusory blows against his former employer, including an allegation that the firm maintains a “macho culture” where time off to attend to fatherhood and being an “engaged” dad are seen as weak and undesirable.  The law firm has denied all of Ayanna’s substantive allegations.  As the ABA Journal article noted, Ayanna’s case is one that leave advocates have been waiting years to press in the courts.  Apparently, so was Ayanna.  Notably, in the year before his termination, Ayanna published an article (pdf) entitled “Aggressive Parental Leave Incentivizing: A Statutory Proposal Toward Gender Equalization in the Workplace,” in which Ayanna outlined the manner(s) in which men could take (appropriate) advantage of parental leave.  Coincidence?  We’ll find out more during the discovery phase of the case.

Insights for Employers

This type of litigation is a bit of a wake up call for employers, since we rarely have seen a working dad wage an FMLA retaliation claim under these circumstances.  However, might more like it lie ahead?  For starters, employers might consider the following to ensure you have maximized your protection against potential FMLA retaliation and sex discrimination claims brought by dads in your workplace: Do you maintain different leave policies for men and women after the birth of a newborn?  Do you provide greater paid maternity leave benefits than paternity leave benefits?  Are men (or women) treated differently because they take the maximum leave amounts for caretaker duties at home (even if it’s in that remote department in your organization that no one pays attention to)?  If the answer is yes to any of these, employers are wise to address these discriminatory practices and/or confirm that the difference in benefits is applied for a non-discriminatory reason.

As state governments across the country scramble to plug large holes in their own budgets, they are digging deeper into employers’ pockets.  Earlier this week, the Connecticut General Assembly passed legislation that will require employers within the service sector (and with more than 50 employees) to provide paid sick leave to their employees, making the state the first in the country to pass such legislation.  (The Connecticut governor has indicated his signature soon will follow.)

As reported by Daniel Schwartz in the Connecticut Employment Law Blog, “service” workers within the state will accrue 1 hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours or 5 business days.  According to the New York Times, the legislation will cover approximately 200,000 to 400,000 workers, including waiters, cashiers, fast-food cooks, hair stylists, security guards and nursing home aides.  However, it exempts manufacturers, nonprofits, as well as salaried workers, independent contractors, temporary workers and day laborers.

Employees will be able to carry over up to 5 days paid sick leave each year.  Under the legislation, employees would be able to use paid sick leave for their own or their child’s or spouse’s health condition; medical diagnosis, care or treatment of a health condition; or preventative medical care.  Paid sick leave also could be utilized for time off if the employee is a victim of family violence or sexual assault.

Insights for Employers

A few municipalities have enacted paid sick leave legislation (San Francisco in 2006; Washington D.C. and Milwaukee in 2008), but Connecticut is the first state to do so.  And as reported by the New York Times and Wall Street Journal, even more cities and states are poised to make the jump to mandatory paid leave for employees.  Other states, like California, have considered similar proposals (the latest bill would have mandated seven paid days), but do not yet have the votes to pass such legislation.  Notably, the National Partnership for Women and Families reports (pdf) that 20 cities and states currently are considering some form of paid sick leave for employees.

At a time when Congress has stalled in passing legislation to broaden the Family and Medical Leave Act, many states appear ready to take the baton and run with it.  Employers across the country should be mindful of sick leave legislation pending in their own state to determine how such legislation might impact their business.

air force.pngOne the biggest FMLA headaches for employers is when an employee fails or refuses to provide information to cure insufficient or incomplete medical certification.  When the employer does not have the information to determine whether an absence qualifies as FMLA leave, it is left with a true dilemma: Try and obtain permission to talk to the health care provider? Delay or deny the leave and face possible litigation? Or simply approve the leave and go on with your day (after all, it’s easier to avoid the confrontation, right)?

Employers: Fear no more!  In a recent case decided by the employee-friendly Ninth Circuit, an employer has the right to deny FMLA leave where the employee refuses or fails to provide adequate certification to support the need for leave under the Family and Medical Leave Act.  Lewis v. United States and Donley (pdf).  This case has excellent practical take aways for employers.

Facts

Plaintiff Janet Lewis was the director of a child development center on a U.S. Air Force Base.  After she was not selected for a promotion, she requested FMLA leave.  In response, the Air Force asked her to return a completed medical certification (WH-380E pdf) form.  After the Air Force gave her additional time to submit medical certification, Lewis provided certification stating that she was “diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescription medications, and 120 days off work.”  Shortly thereafter, Lewis’ supervisor informed her that the information she provided was insufficient to support the need for FMLA leave.  Lewis refused to provide additional information.  As a result, the Air Force immediately converted the leave to Absence Without Leave (AWOL) and later terminated her employment as a result.

Termination Upheld

Lewis contested her termination internally and filed a lawsuit claiming that the Air Force interfered with her FMLA rights when it refused to provide FMLA leave.  The Court disagreed.

Strike One: First, the court found that the employee failed to provide medical certification that showed she suffered from a serious health condition that rendered her incapable of performing the duties of her job.  Take note of what was significant to the Court:

The form, however, fails to provide a summary of the medical facts that support [Lewis’] diagnosis . . . [and] contains no explanation as to why Lewis was unable to perform her work duties and no discussion about whether additional treatments would be required for her condition.

Strike two: Interestingly, the employee argued that the Air Force should have sought a second opinion if it questioned the adequacy of the certification and desired additional information.  The Court quickly rejected this argument, holding that an employer clearly has the right to obtain information from an employee when it questions the sufficiency of the medical certification.  Only when an employer doubts the validity of the certification is a second opinion appropriate.

Strike three: Finally, on a related but separate issue, the Court found that the Air Force’s willingness to provide Lewis 22 days to return medical certification (instead of the customary 15 days) was reasonable under the circumstances.  Thus, the employee could not argue she did not have enough time to return sufficient medical certification.  Case dismissed.

Insights for Employers

What an outstanding win for employers and, frankly, a vindication to those employers and HR professionals who wisely follow the regulations and appropriately ask for additional information when an employee’s certification is insufficient or incomplete.  This case provides a great practical guide for employers when dealing with a difficult or non-responsive employee during the medical certification process:

  1. Employers should take note of what basic information the Court found they are entitled to: medical facts supporting the employee’s serious health condition; explanation from the health care provider as to the reasons why the employee could not perform the job in question; and whether additional treatments would be required.  As I have shared before, the employer has the right to ask these questions and more of an employee to determine whether the FMLA is at issue, and to insist upon complete and sufficient medical certification.
  2. Use the DOL model FMLA forms or forms properly modified by your employment counsel.  Although the DOL forms aren’t the best, and modification is appropriate, using these forms can help avoid liability, as evidenced by this decision, where the Court specifically adopted the requisite inquiries contained in Form WH-380E.
  3. Don’t be so quick to think that your only recourse is a second opinion.  As the Court pointed out, when an employer questions the sufficiency of certification, it has the right to obtain the information first through the employee.  The employer is not (yet) required to proceed directly to a second opinion.
  4. Keep communicating with your employee.  Where certification is insufficient, tell your employee precisely what information is missing/insufficient and give them time to cure (at least seven days).  Where they fail to cure the deficiency, considering obtaining their permission to talk directly with their health care provider to obtain the information.  In this situation, the employee has two choices: either cure the certification or grant permission for the employer to contact the health care provider.  We have prepared model correspondence and HIPAA-compliant releases for our clients to assist with this process, so communicate with your employment counsel to ensure you have the appropriate documents as well.

Employees should think twice before setting off on a Cancun vacation while out on FMLA leave.  In an FMLA decision that smacks of pure common sense, a federal court has upheld an employer’s reasonable work rules that restricted an employee’s travel outside the immediate vicinity while on FMLA leave.  Pellegrino v. CWA (pdf).

The Facts

Denise Pellegrino, a employee of the Communication Workers of America (CWA), informed CWA that she needed to undergo a hysterectomy. CWA approved Pellegrino for FMLA leave, an absence which ran concurrently with paid sick leave.   Shortly thereafter, Pellegrino scheduled her surgery, and both her unpaid FMLA leave and paid sick leave began.

About two weeks after surgery, Pellegrino took off for Cancun, Mexico for one week.  Pellegrino did not inform CWA that she would be leaving the country, nor did she request permission to travel.  This was significant because CWA’s work rules specifically required employees to “remain in the immediate vicinity” of their home while utilizing sick leave, unless they were seeking treatment or attending to “ordinary or necessary activities directly related to personal or family needs.”   An employee also could leave the immediate vicinity if they received express permission from CWA.

CWA found out about Pellegrino’s trip to Cancun and terminated her employment because she traveled to Cancun while on FMLA and disability leave in violation of CWA’s leave policies and work rules.

The Court’s Decision

Pellegrino sued, claiming that CWA’s decision to terminate her while on leave interfered with her ability to use FMLA leave.  Conversely, CWA argued that it terminated Pellegrino’s employment not because she was on FMLA leave, but because she took unapproved travel to Cancun while utilizing sick leave.  As such, her conduct violated the Company’s leave policies and work rules.  According to CWA, it would have terminated her employment whether or not she was on FMLA leave.

Notably, although the court agreed that Pellegrino’s leave was protected by the FMLA (and that CWA had, in fact, provided FMLA leave), it held that CWA had the right to enforce its own leave policies, which in this case, required that Pellegrino receive permission to travel outside the immediate area.  The Court reasoned that Pellegrino’s conduct would have been improper whether or not FMLA leave was involved.  According to the court, this is all the more true where an employer has adopted policies designed to prevent FMLA abuse:

[T]he FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of the FMLA leave . . .

Further, no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country.

Insights for Employers

It is worth comparing this case with the Tayag v. Lahey Clinic Hospital, in which an FMLA claim was dismissed after the employee traveled to the Phillippines to meet with a faith healer and spend significant time visiting family.  In Tayag, the court dismissed the FMLA claim largely because the plaintiff was not seeking treatment, but rather, taking a vacation.   Here, the court found that a Cancun vacation could be consistent with the need for FMLA leave.  A scary precedent, I think.

Nevertheless, in addition to serving as good precedent for employers, this decision reminds us of a few golden rules when it comes to FMLA administration:

  1. Obtain complete and sufficient medical certification regarding an employee’s serious health condition, including information about treatment plans (which very well could tip you off to the possibility that the employee may be looking to schedule a trip to a remote sandy beach while on FMLA leave)
  2. Enforce call-in procedures.  If the employee is required by policy to call in daily or at regular intervals, enforce the policy!
  3. Apply all policies consistently with respect to employees taking FMLA and non-FMLA leaves of absence.
  4. Communicate with employees to obtain information about their serious health condition, the need for leave, the duration of leave and their expected return to work.  For an example of how this is done correctly, follow the employer’s lead in Righi v. SMC Corp., which we highlighted a few months back.
  5. As CWA did here, conduct a thorough investigation and allow the employee to explain the trip to Cancun before making the knee-jerk decision to terminate.  Although your failure to do so likely would keep your employment attorney in business, we want to make sure you stay in business first.