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June/July
2005
 Court
Says Employer Can Enforce Sick Leave Policy While Employee Is on FMLA
Leave if It Doesn’t Conflict With Act
Brushing aside an
employee’s argument that once he was preapproved for Family and
Medical Leave Act (FMLA) leave the Act gave him the right to be “left
alone,” the Third Circuit has held that an employer may enforce
its sick leave policy against an employee on FMLA leave, so long as
the policy does not conflict with nor diminish the protections guaranteed
by the FMLA. Callison v. City of Philadelphia (3rd Cir. 2005).
David Callison worked
for the City’s Office of Fleet Management (OFM). The OFM employee
manual contains the following requirement for all employees on sick
leave:
During regular
working hours, when an employee is home on sick leave, the employee
must notify the appropriate authority or designee when leaving home
and upon return. An employee is to remain at home except for personal
needs related to the reason for being on sick leave. While on sick
leave an employee may be called or visited by a sick leave investigator
unless the employee has 150 days or more of accumulated sick leave
credit.
Callison went out
on an approved FMLA leave for about three months. Twice during that
time, the City conducted investigations and found that Callison was
not at home and had failed to notify the Sick Control Hotline. Pursuant
to policy, Callison received a one and three day suspension, respectively,
for his failures to notify the hotline. The suspensions were served
by Callison when he returned from FMLA leave.
Callison sued the
City, alleging that the suspensions interfered with his right to take
FMLA leave. He reasoned that he was not restored to the same salary
because the suspensions amounted to four days of lost wages.
Callison’s
argument, in a nutshell, was that “once an employee is pre-approved
for FMLA leave, he/she should be left alone.” The district court
disagreed and granted the City’s motion for summary judgment.
The Third Circuit affirmed the district court’s judgment.
The district court
found that the call-in policy did not conflict with any provisions of
the FMLA. Further, the lower court reasoned that the purpose of the
FMLA was not compromised by the policy because it “neither prevents
employees from taking FMLA leave nor discourages employees from taking
such leave. It simply ensures that employees do not abuse their FMLA
leave.” The Third Circuit agreed with the lower court’s
reasoning.
Finally, the appellate
court found that there was no right in the FMLA to be “left alone.”
The court did recognize
that where an employer’s policies conflict with the FMLA, the
FMLA controls and the employee need only comply with the requirements
of the Act. But sick leave policies are only invalidated to the extent
they diminish the rights created by the FMLA.
Because the City’s
call-in policy neither conflicted with nor diminished the protections
guaranteed by the FMLA, the court held that it was not invalidated by
the Act and the City did not violate Callison’s rights by placing
him on suspension for the violations.
Employer
Notes: This case should act as some consolation for employers
that they do not have to treat employees on FMLA leave as if they have
been granted some exalted status that precludes the employer from preventing
leave abuse. On the other hand, it makes clear that before enforcing
provisions of its sick leave policy or collective bargaining agreement,
the employer must be sure that the provisions do not conflict with the
Act. The Callison court noted two provisions that had been
found to conflict with the FMLA in other cases: (1) Vanderpool v.
INCO Alloys Int’l, Inc. (S.D.W.V. 1999) (the employer’s
requirement of advance notice and prohibition of telephonic requests
directly conflicted with FMLA provisions permitting telephonic notice
and dispensing with advance notice if the need for leave was unforeseeable),
and (2) Marrero v. Camden County Bd. Of Soc. Servs. (D.N.J.
2001) (the employer’s policy requiring certification for five
consecutive absences directly conflicts with the FMLA provision affording
employees at least fifteen days to provide a certification)
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