Who in HR can say they have not been tempted to “spy” on an employee on Family and Medical Leave Act (“FMLA”) leave to make sure that they are not faking it?  Wouldn’t it be great to catch that employee you are sure is lying as he is playing golf when he should be home recovering from his back surgery? Or catching the employee on leave supposedly recovering from a hysterectomy right after she returned from a week-long vacation in Mexico?

Surely, under these circumstances you could safely terminate the offending employee…couldn’t you? 

Well, according to a Pennsylvania federal court, if you keep your sick leave policy separate from your FMLA policy and apply them consistently, the answer is (thankfully) yes!  In fact, through your sick leave policy, you could actually restrict your employees on sick leave to the immediate vicinity of their homes, except to receive medical treatment, to attend to necessary activities related to personal or family needs, or with prior company approval.  That is exactly the type of policy that the court upheld in recent case known as Pellegrino v. Communications Workers of America.

The employee in Pellegrino took FMLA leave for a hysterectomy.  Consistent with her employer’s FMLA policy, in order for her to be paid during her leave, she had to be on approved sick leave under its sickness and absenteeism policy, which restricted her to the immediate vicinity of her house.  However, while on leave she traveled to Cancun, Mexico for a week-long vacation.  While her physician later stated that the trip was not inconsistent with her recovery, the trip was a violation of her employer’s sickness and absenteeism policy, and she was terminated.  The court rejected her claim that her termination violated the FMLA, concluding that since her employer’s sickness and absenteeism policy was separate from its FMLA policy, the FMLA was not violated because she was terminated for reasons unrelated to her FMLA leave.

This case emphasizes the importance of maintaining sick-leave policies that are separate and distinct from FMLA-leave polices.  The court in Pellegrino implied that if there had been no separate sick-leave policy, her argument that her trip was not inconsistent with her recovery may have been a winning one.  However, her employer’s sickness and absenteeism policy made clear that any unapproved travel would be prohibited while she was taking paid sick leave.

While this case does not mean you should run out and revise your sick leave policies to prohibit employees from leaving their houses when sick, it may be a good idea to take a good look at your current sick leave policies, make sure they are separate from your FMLA policies, and consider how they might be modified to reduce the likelihood of abuse by an unscrupulous employee.