Like most employment law issues, the answer is: it depends on the circumstances.
The Family and Medical Leave Act (“FMLA”) provides eligible employees with up to 12 weeks of unpaid leave per year for specific family and medical reasons. While an employee is on FMLA leave, they are entitled to job protection and continuation of their group health insurance benefits.
The following are some examples of conditions that should qualify for FMLA leave from work:
- The birth, adoption, or foster care placement of a child
- Caring for a spouse, child, or parent with a serious health condition
- A serious health condition that makes the employee unable to perform their job
- Any qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is on active duty or called to active-duty status in the National Guard or Reserves in support of a contingency operation
- Care for a covered servicemember with a serious injury or illness incurred in the line of duty while on active duty in the Armed Forces (Military Caregiver Leave)
Keeping this in mind, there are obvious reasons where travel would certainly be permitted during FMLA leave, such as traveling to adopt a child in another state or country; or traveling to get medical care for you, a spouse, child, or parent at an out-of-state medical provider. Then there are situations where an employee would probably be good traveling during FMLA, such as taking a few days off from caring for a sick parent. Alternatively, a firefighter or laborer with a broken leg that prevents him/her/they from doing the central functions of the job, should be able to travel for a out of state wedding or to even just sit on a beach somewhere. Likewise, traveling to relax while getting treatment for PTSD may be acceptable. But to avoid problems, employees should check with the boss or HR beforehand (and an employee’s rights attorney if necessary).
According to the Department of Labor’s FMLA regulations, employees are entitled to use any accrued vacation time or paid time off (“PTO”) concurrently with their FMLA leave. This means that if an employee wants to take a vacation during their FMLA leave, they may be able to do so using their accrued vacation time or PTO.
However, it’s important to note that employers are not required to allow employees to use their vacation time or PTO during FMLA leave. Employers may have their own policies regarding vacation time and FMLA leave that employees must follow. It’s always best for employees to consult with their HR department or employer to determine their specific rights and responsibilities regarding vacation time and FMLA leave.
On the other side of the spectrum, there will be some obvious problems for employees. Employees claiming a physical restriction will likely face problems when they take off for ski trips, jet skiing, or other strenuous activities that contradict the reason that they are taking FMLA. Even worse, employees who use intermittent FLMA leave when they do not really need it to get added vacation time are likely to be fired if caught and will not likely have any legal remedy. Our attorneys have previously blogged about these employees getting busted by posting their own pictures on social media or being caught in someone else’s post.
While posting pictures flaunting your vacation on social media is bold, Diondre Cobb was even bolder. He worked for Alaska Airlines as a customer service agent and in early 2019, Cobb was diagnosed with hydrocephalus, a condition affecting his brain. Alaska Airlines approved him for intermittent FMLA leave. In July 2019, Cobb wanted to take a trip to Hawaii but could not find someone to cover two of his shifts. So, Cobb took the trip anyway and then while already in Hawaii called in on the day of his first shift to use FMLA. He then used FMLA for the last day of his vacation as well. Being in Hawaii when taking his FMLA clearly indicates that he was not using the intermittent leave for his condition but rather because he was already thousands of miles away from showing up for work. That, however, is not what makes Cobb’s conduct so bold. Indeed, Cobb used his employee travel privileges to book flights to Hawaii for himself and two others departing on August 7, 2019, which means that the employer knew that he had been in Hawaii for two days when he used his intermittent FMLA leave.
After an investigation, Alaska Airlines fired Cobb, who in turn sued his former employer for FMLA retaliation and wrongful termination.
In Cobb v. Alaska Airlines, Inc., No. 22-35240, 2023 WL 2624784, at *2 (9th Cir. Mar. 23, 2023), the United States Court of Appeals for the Ninth Circuit had little hesitation in affirming the dismissal of this claim:
The district court did not err in holding that Cobb failed to raise sufficient evidence to create a genuine issue of material fact that Alaska discharged him on the basis of his disability. Further, Alaska provided a legitimate, non-discriminatory reason for Cobb’s discharge, and Cobb has not met the burden of persuasion to show that Alaska’s proffered reason was a mere pretext. Mendoza v. The Roman Cath. Archbishop of Los Angeles, 824 F.3d 1148, 1150 (9th Cir. 2016). Alaska states that it discharged Cobb not due to his disability but because Cobb violated company policies, including its policy against dishonesty and against use of travel privileges while on FMLA leave unless to receive medical treatment, when he invoked FMLA leave on August 9 and 12 without consulting his supervisors prior to doing so and did not travel specifically to receive treatment in Hawaii. Such bases may be lawful, legitimate reasons for discharge, and Cobb has not provided evidence indicating that these reasons are mere pretexts.
In conclusion, if an employee is on FMLA leave for a qualifying reason, such as the birth or adoption of a child, and they are physically able to travel and take a vacation, they may be able to do so. It’s important for employees to communicate with their employer and ensure that they are complying with their company’s FMLA policies and procedures, which may include obtaining approval from their employer before taking any vacation during their leave.
Best FMLA Attorney Blogs on Point:
- Can I Do Other Things Besides Provide Care While On FMLA?
- Can My Job Conduct Surveillance While I’m Out On FMLA?
- Top Medical Leave Lawyer Reply: Can I Attend Family Events Or Vacations While On FMLA?
- Yes, You Can Be Fired For Poor Performance And Unrelated Absences While Using FMLA
- What Are The FMLA Medical Certification Requirements?
- How Do I Notify My Employer I Need FMLA Leave?
- Can I Be Fired For Poor Job Performance After Using FMLA?
Do I have a good reason to travel while using FMLA leave?
As you can see, there is no bright line answers to determine if your particular situation will allow you to travel while on FMLA leave. If you have not traveled yet, you should consult your manager, supervisor, or designated HR representative. If you have already been fired, you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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