Sick Leave Confinement Policy Does Not Violate FMLA

Directive 66 of the Philadelphia Police Department provides that if an employee is either on the “Excessive Use Of Sick Leave List” or has less than 1200 hours of accumulated sick leave, the employee will be subject to home visits and/or telephone calls between the hours of 7:00 a.m. and 1:00 a.m. by a sick leave investigator and supervisory personnel of the Department on any occasion when the employee is using sick leave. Under Directive 66, if an employee leaves her place of confinement, she must notify her district prior to departure from and when returning to her place of confinement. If the employee is not home when she is checked, the employee is subject to disciplinary action.

Deena Bradsher was a Philadelphia police officer. In a lawsuit, Bradsher claimed that Directive 66 violated her rights under the Family and Medical Leave Act (FMLA), and that the enforcement of the Directive led to her “constructive discharge.” The Court found that “the City’s sick leave policy requiring employees to be subject to sick checks neither conflicts with nor diminishes the protections guaranteed by the FMLA, and the sick leave policy is not invalidated by the FMLA. The policy neither prevents employees from taking FMLA leave nor discourages employees from taking such leave. It simply insures that employees do not abuse their FMLA leave.”

In rejecting Bradsher’s lawsuit, the Court observed that “Bradsher insists that she was in fact on FMLA leave during the period in question, so she evidently was not discouraged from taking FMLA leave by the City’s sick leave policy. Here, the City’s use and application of Directive 66 is consistent with the law in that it sets forth the obligation of the parties who are on leave, regardless of whether the leave is pursuant to the FMLA and it insures that employees who are on leave from work do not abuse their leave, particularly those who enter leave while on the employer’s Sick Abuse List.”

Bradsher v. City of Philadelphia Police Department, 2007 WL 2850593 (E.D.Pa. 2007).

This article appears in the December 2007 issue