Margaritas And Medical Leave

The summer months bring to mind barbeques, baseball games and vacations. As the weather warms, many of us would much rather spend our days in the great outdoors instead of in our offices. However, for one employee in New Jersey, pursuing fun in the sun while she was on FMLA leave ended up costing her job.

Denise Pellegrino was employed by Communications Workers of America (“CWA”), a labor union, as a clerical worker. In August 2008, Pellegrino informed CWA that she needed to take FMLA leave for a medical procedure. CWA approved the leave which began October 2, 2008, the day of Pellegrino’s surgery. Although the leave was unpaid, Pellegrino received pay through CWA’s Sickness and Absenteeism Policy which provides wage replacement for eligible employees on medical leave subject to certain restrictions. One such restriction required employees to remain in the immediate vicinity of their homes during the leave period unless CWA granted written permission for travel.

Shortly after her surgery, Pellegrino traveled to Cancun, Mexico, for one week without CWA’s approval. Upon learning of the trip, CWA confronted Pellegrino about it and she admitted to taking the trip. As a result, CWA fired her on the grounds that traveling to Cancun while on FMLA leave was a violation of CWA’s leave policies and work rules. Pellegrino sued CWA alleging that CWA interfered with her right to take FMLA leave by terminating her.

A federal district court in Pennsylvania sided with CWA. The court concluded that CWA’s termination of Pellegrino was legitimate because she violated CWA’s Sickness and Absenteeism Policy by taking an unauthorized trip while accepting wage replacement. The court stated that CWA’s decision to enforce this policy was separate from Pellegrino’s use of FMLA leave. The court noted that FMLA does not shield an employee from termination if the employee engages in misconduct relating to the use of FMLA leave. FMLA also does not prevent employers from ensuring that employees do not abuse their leave. Finally, the court concluded that CWA’s policy did not discourage or prevent CWA employees from taking FMLA leave. Rather, providing wage replacement encourages employees to take unpaid leave under the FMLA.

Although it remains to be seen whether Pellegrino will appeal, the court’s decision in Pellegrino v. Communications Workers of America is a victory for employers. It also represents a common sense approach to handling employee requests for FMLA leave. Finally, the decision shows that employers need not be afraid of potentially disciplining employees for abuses of FMLA leave.