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By:  Brian M. Culnan, Esq.
Iseman, Cunningham, Riester & Hyde LLP
Albany/Poughkeepsie, New York

As spring breaks are planned, thoughts of many employees may turn to recollections about the summer’s hot sun, warm beaches and vacations with family and friends. However, for one employee, pursuing fun in the sun ended up costing her a job because she took a vacation while on leave under the Family and Medical Leave Act (“FMLA”).

In Pelligrino v. Communication Workers of America, the plaintiff was employed by the Communications Workers of America (“CWA”), a labor union, as a clerical worker.  She requested leave to undergo a medical procedure.  In response to the request, CWA informed the employee that it would approve her FMLA leave request and that the FMLA leave would run concurrently with paid sick leave.  The employee scheduled surgery, and both her unpaid FMLA leave and paid sick leave began.

Under CWA’s work rules, an employee utilizing sick leave was required to “remain in the immediate vicinity” of her home unless she was seeking treatment, attending to “ordinary and necessary activities directly related to personal or family needs,” or had received express permission from the employer.  Shortly after undergoing surgery, and without permission from her employer, the employee traveled to Cancun, Mexico, staying for approximately one week.  When CWA officials learned of the employee’s trip, it terminated her employment.

Thereafter, the employee brought a lawsuit against CWA for interference with her FMLA rights.  The employer contended it terminated her employment not because she was on FMLA leave but because she took unapproved leave to Cancun while utilizing sick leave, thereby violating its leave policies and work rules.

While the court agreed the employee’s leave was FMLA-protected, it nevertheless dismissed her claim, determining that CWA did not interfere with her FMLA leave.  The court reasoned that the employee’s conduct would have been improper whether or not FMLA leave was involved, and this was particularly so where the employer’s policy was designed to stop FMLA abuse.  In short, the court held that the FMLA does not shield an employee from termination if the employee is involved in misconduct related to the use of FMLA leave.

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