Employers occasionally receive reports that an employee who is supposedly incapacitated enough to qualify for Family and Medical Leave is behaving in ways inconsistent with leave status. What happens when the FMLA employee is discovered working another job, engaging in rigorous physical activity or traveling outside the U.S.? Last month, the Third Circuit Court of Appeals agreed that an employer's termination of an employee who violated its paid leave policy was not FMLA interference.

In Pellegrino v. Communication Workers of America, the plaintiff worked for a union that provided paid sick leave to employees under the condition that they remain in the immediate vicinity of their homes during the leave. She needed surgery, and was placed on four weeks of concurrent FMLA and paid leave under the employer's policy. The employer discovered that two weeks after the initial surgery, the plaintiff traveled to Cancun with several friends. It terminated her employment for violation of the paid sick leave policy.

The plaintiff sued, alleging interference with her FMLA rights. She claimed that she was never informed of the paid sick leave restrictions. The Third Circuit concluded that the FMLA does not require employers to provide notice of paid sick leave restrictions. Because the leaves run concurrently, the employer's enforcement of its paid leave policy does not interfere with FMLA rights, as long as the employee is provided minimum FMLA guarantees.

The court did not address the question of whether the employee's original medical certification was fraudulent, or whether her travel was consistent with her claimed incapacity. The employer's sick leave policy in this case is relatively unusual, but could serve as a good way for employers to prevent employees from abusing both FMLA and paid sick leave.