Employers have the right to expect that sick leave will be used for legitimate health-related reasons. While everyone needs a “mental health day” from time to time, some employees try to take advantage of paid sick leave while on leave under the Family Medical Leave Act (FMLA).
The good news is that employers can adopt policies to deter abuse; in addition, they can even take action against employees who fail to comply. The keys are properly drafted attendance/leave policies that set guidelines for leave while also recognizing FMLA obligations. The attendance/leave policies would cover all absences due to illness or disability and would therefore encompass FMLA leaves.
For example, employers can adopt a leave policy that specifies that recreational travel is not permitted during approved paid sick leave. This policy would also apply to employees on approved FMLA leave. The leave policy can also specify that employees must provide notification if they plan to travel outside the vicinity of their home during their sick leave. For example, in a recent Pennsylvania case involving an employee who traveled to Cancun while on FMLA leave, the court found that her termination was justified because she had violated the company’s leave policies requiring prior approval to travel inside their immediate vicinity.
Employers are also permitted to terminate employees who violate these policies without running afoul of the FMLA.
In that case, the court made it clear that FMLA does not prohibit employers from implementing leave policies to prevent abuse of leave, as long as such policies “do not conflict with or diminish the rights provided by the FMLA.”
The key is crafting an attendance/leave policy that prevents abuse but yet complies with the FMLA.
Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs guidance regarding FMLA or other leave policies, contact employment law attorney Beth Lincow Cole today.
