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Your company’s sick leave policy requires employees on medical leave to remain home while recovering from their illnesses. The policy specifically provides that engaging in work or recreational activities of any kind is an abuse of sick leave and subjects an employee to disciplinary action, including discharge, for violations. Debbie, an employee with your company, has taken a leave of absence in order to treat her kidney stones. Although she has previously taken leave under the Family and Medical Leave Act for this same problem, she has not specifically asked that her current leave be classified as FMLA leave. When one of her coworkers sees her out “running an errand” while on leave, you decide to hire a private investigator. Over a period of several days, the investigator observes Debbie going to several different stores, fast food restaurants, a family-owned tavern, and a spa. Based on this information, the decision is made to discharge Debbie for abuse of the sick leave policy. She files a lawsuit claiming that the policy violates her substantive rights guaranteed under the FMLA. Does the policy violate the FMLA?
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Answer: |
Not according to a federal trial court in Pennsylvania. In a case with very similar facts, the court ruled that an employer’s sick leave policy that required employees on sick leave to stay home while recuperating from their illnesses and prohibited them from engaging in any recreational activities did not conflict with the FMLA. The policy did not discourage employees from seeking benefits under the FMLA, the court noted. It simply ensured that employees would not abuse sick leave regardless of whether they were taking FMLA leave.
Regulations, the court noted, provide that under the FMLA, an employee has “no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” This means that because the employer had the right to discharge the employee for abusing the company’s sick leave policy while on duty, it also had the right to fire the employee for the same violation while she was on leave, the court stated.
The employee argued that the activities she engaged in were not “recreational activities” and that her employer’s sick leave policy penalized her for leaving the house, even if the activity was within the restrictions imposed by her doctor. This, the employee asserted, interfered with her FMLA rights. The court, however, disagreed. Based on its surveillance of the employee, the employer established an honest belief that the employee was abusing her sick leave. The Seventh Circuit, the court noted, has stated that if an employer honestly suspects than an employee is not using sick leave for its intended purpose, the employer has the right to discipline the employee, including discharging the employee, even if the employer’s suspicion is incorrect. Because there was no evidence disputing that the employer truly believed that the employee was abusing the sick leave policy, it was justified in terminating the employee.
Source: Hackney v Central Illinois Public Service Co dba Amerencips (CDIll 2006) 153 LC ¶35,177.
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