Third Circuit holds that an employer's policy precluding traveling while an employee on FMLA leave is appropriate and no violation of the FMLA occurs when that policy is enforced.

The Third Circuit upheld summary judgment in favor of an employer in an employee's claim that the employer interfered with her rights under the FMLA. There, the employee was granted FMLA leave of at least four weeks in connection with her surgery. Two weeks following the surgery, the employee traveled to Mexico for one week and failed to notify her employer of the trip. The paid leave policy of the employer, however, required that employees "remain in the immediate vicinity of their home during the period of such a paid leave." Upon learning of the trip, the employee was terminated for violation of the employer's sick leave policy. In affirming the dismissal of the employee's lawsuit, the Third Circuit found that the employer did not violate the FMLA. In so holding, the Third Circuit stated the employer's sick leave policy merely set forth the obligations of employees who are on leave, regardless of whether the leave was pursuant to the FMLA and "[n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave." Accordingly, since the employer's sick leave policy was not inconsistent with the FMLA, the employer did not interfere with the rights under the FMLA simply by enforcing its policies.

Of course, as a practical matter, employers must be certain that their leave policies are enforced uniformly to all employees. In particular, this case could have resulted in a different outcome if the employee was able to demonstrate that the employer failed to enforce the same leave policy against those who did not request (or receive) FMLA.

Case Law Alert - 3rd Qtr 2012