Once, while recovering from surgery, my doctor instructed me not to lift anything heavier than a gallon of milk — most certainly ruling out picking up either of my kids for a piggyback ride or a snuggle in my lap. I hated it. I complied, but I hated it.
While pregnant, doctor's orders were to not take air travel after 32 weeks. Wasn't crazy about that either, but I did it.
I say these things for two reasons: One, to demonstrate that I'm an awful patient. And two, to illustrate how, if I resented my doctor for grounding my activities (even with a legitimate health reason), I'd most certainly resent my employer for doing so.
But, restricting an employee's activity while on leave is OK, a federal court ruled recently, stating that an employer may enforce work rules that require employees to "remain in the immediate vicinity" of their home while on sick leave.
In the case, Pellegrino v. CWA, Denise Pellegrino had spent about two weeks at home recovering from surgery — on concurrent FMLA and paid sick leave — before leaving home to go to Cancun, Mexico. The fly in the ointment is that according to CWA's sick leave policy, employees on leave may not leave their local area without written permission from the company unless seeking medical treatment or conducting "ordinary or necessary activities directly related to personal or family needs."
I'm guessing Pellegrino wasn't in Cancun on a post-op physician's visit.
CWA didn't think so either, and when officials found out about Pellegrino's trip, they terminated her. She sued, claiming the termination interfered with her right to FMLA leave.
Although the court agreed Pellegrino's leave was protected, it found CWA had a right to enforce its leave policies.
I'm not an attorney, so I won't argue the points of law in this case. My bone of contention though is with an employment policy that tells me where I can and can't go while on sick leave. I don't care if I'm dragging one leg behind me, I should be able to drag it wherever I choose.
Slippery slope for employers
In a discussion on EBN's blog, commenter Keith M writes that "this seems like a pretty slippery slope for employers to navigate for what I suspect is pretty minimal documented cost savings on paid sick leave and/or STD. There are far better and more clear-cut ways to manage these costs than hanging your hat on such an arcane policy. Perhaps there were performance issues involving Ms. Pellegrino, and this was merely a pretext for terminating her."
He continues: "Who cares what an employee does on paid sick leave? I just don't see the compelling financial case to consider going down this policy road. I wonder how much savings CWA realized on this sick time policy after paying the legal fees on this case."
Commenter Park Place, however, thinks CWA's policy "makes a lot of sense. If a person is sick and unable to work, then it would seem appropriate that they are not able to engage in other activities that would be work equivalent, including being up and about in public, or physically active. The caveat might be if [an employee] were, for example, in a job involving lifting at a company with no light duty, and had a musculokeletal condition that precluded the lifting, but not heading to Cancun and laying on the beach. On the other hand, if an employer is paying a person during a sick leave, they are on the company dime and some reasonable restriction seems not burdensome. These restrictions are likely in place because employers know they have been gamed by folks using sick leave as free time- off."
What do you think? Do you agree or disagree with CWA's lockdown leave policy? Email me your thoughts or visit ebn.benefitnews.com/blog/daily_diversion to share them in the comments.
Send letters, queries and story ideas to Editor-in-Chief Kelley M. Butler at firstname.lastname@example.org.
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