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Employer’s toolbox: Use Your Sick Leave Policy to Curb FMLA Abuse

By Martha J. Cardi, Reed Group Chief Compliance Officer

Last quarter we wrote about how employers can curb FMLA abuse by creating a toolbox for  absence management which includes a strong attendance policy.  View.   Reed Group now recommends adding to your toolbox: the sick leave policy.

Employers are often concerned that employees are misusing FMLA time or company paid sick. Here are two great examples of how employers’ sick leave policies have effectively curbed FMLA abuse and survived courtroom scrutiny.

CASE 1: Pellegrino v. Communications Workers of America.   A case decided earlier this year emphasizes that time taken under FMLA does not provide unfettered job protection.  Instead, an employee must still abide by all workplace rules while exercising rights under the FMLA. The employee’s FMLA leave, the employer’s sick leave policy, and the court’s decision are set forth below.

The employer’s sick leave policy: The employer’s manual included a policy entitled Sickness and Absenteeism. This policy provided wage replacement for eligible employees on medical leave subject to certain restrictions, including that employees remain in the immediate vicinity of their homes during the period of sick leave. The policy contained exceptions if an employee needs medical treatment, must attend certain personal or family activities, or if an employee receives written permission from the company to travel. This policy was separate from the company’s FMLA policy, but the Sickness and Absenteeism policy did note that the company provides unpaid leave in accordance with the FMLA and that FMLA runs concurrently with the sick leave.

The employee:  Denise Pellegrino sought an FMLA leave of absence in order to undergo a hysterectomy. Included in the FMLA packet sent to Ms. Pellegrino by her employer was a letter noting that the process for medical certification under FMLA was separate from the eligibility process to receive wage replacement under the sick leave policy. The letter also stated that under the policy, if she met the qualifications, Ms. Pellegrino would be required to use her paid leave during her FMLA leave.

The employer approved Ms. Pellegrino’s FMLA leave and also paid her wages under the Sickness and Absenteeism policy. Two weeks after Ms. Pellegrino’s hysterectomy surgery and while on her approved leave of absence, Ms. Pellegrino traveled to Cancún where she stayed for 7 days. Ms. Pellegrino did not receive written permission from her company to travel nor did she request vacation time during the dates she was in Cancún. Upon return and after admitting the trip to her employer, the company fired Ms. Pellegrino for not following the Sickness and Absenteeism policy.

The court:  The court noted that the FMLA does not prevent an employer from instituting policies to prevent the abuse of FMLA leave as long as the policies do not conflict with an employee’s FMLA rights. Also, the court stressed that the FMLA will not shield an employee from termination if the employee was allegedly involved in misconduct related to the FMLA leave.

The court determined that the Sickness and Absenteeism policy served several legitimate purposes including providing the benefit of wage replacement during a leave of absence that would otherwise go unpaid and also ensuring that the privilege of paid sick leave is not abused by employees. In fact, the court contemplated that a sick leave policy providing wage replacement during unpaid FMLA leave actually serves to encourage, rather than discourage, an employee’s use of FMLA.

Pellegrino v. Communications Workers of America, 2011 WL 1930607 (W.D.Pa 2011)

CASE 2: Callison v. City of Philadelphia.  This case was cited during the court’s review of Ms. Pellegrino’s claim and, although not as recent, also holds a key lesson for employers. In 2005, the federal Third Circuit determined that an employer’s sick leave call-in procedure which set forth employees’ obligations when using the company’s paid sick time did not run afoul of the FMLA.

The employer’s sick leave policy: The employer’s handbook contained a sick leave policy that required employees out on paid sick leave to notify the company’s Sick Control hotline when leaving home and again upon returning. The policy further stated that while on sick leave, the employee was to remain at home except for personal needs related to the reason for being on sick leave.  The policy informed employees that a sick leave investigator might call or visit an employee on sick leave unless the employee has 150 days or more of accumulated sick leave credit.

The employee: David Callison used 26 days of sick leave in January 2000 and subsequently 12 days the following year. Because of his frequent use of sick leave in 2000, Mr. Callison was placed on the company’s Sick Abuse List in 2001, which meant that he had to obtain medical certification for all sick days and was subject to progressive penalties for violations of the sick leave policy.

After being placed on the Sick Abuse List, Mr. Callison took another sick day and never notified the Sick Control Hotline that he was leaving his home that day; an investigator called his residence when Mr. Callison was not there. Mr. Callison then received a warning for violating the sick leave policy.

Following this incident, Mr. Callison went out on approved FMLA leave and also received sick pay during the absence. While Mr. Callison was on leave, the employer investigated and found that Mr. Callison was not home on two occasions and failed to notify the Sick Control Hotline that he was leaving his home. Mr. Callison received one- and three-day suspensions, respectively, for failing to notify the hotline that he was leaving his home.

The court: Notably, the court stated that employees do not have a right to be “left alone” while on a leave of absence from work and employers may ensure that employees do not abuse the leave. The court determined that the employer’s Sick Abuse List and corresponding progressive discipline as well as the call-in hotline procedure did not compromise an employee’s FMLA rights because the employer was simply ensuring that their employees did not abuse leave.

Callison v. City of Philadelphia, 430 F.3d 117 (3rd Cir. 2005)

Check your sick leave policy!  As these two cases demonstrate, an employer can combat leave of absence abuse by putting in place an across-the-board sick leave policy that allows the employer to verify that employees are using paid sick days for the proper reasons. This means the employer can even require approval of an employee’s errands or travel away from home. The key here is that the employers’ policies were related to employee use of paid sick leave, not for unpaid FMLA use.

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