7th Circuit: Right To Require Substituted Paid Leave for FMLA Leave Limited

By Maria Greco Danaher Mar 9, 2007

The Family and Medical Leave Act (FMLA) generally permits employers to require employees to substitute paid leave for portions of unpaid FMLA leave, but this substitution requirement is not unlimited. The 7th U.S. Circuit Court of Appealsheld that an individual who was receiving disability benefits from a third party was not obligated also to use her paid vacation and sick leave concurrently with her FMLA leave.

Alice Repa was an employee of Roadway Express, a commercial trucking company that is party to a multi-company collective bargaining agreement with the International Brotherhood of Teamsters. The agreement requires member employees to contribute to the Wisconsin Health Fund (WHF). The fund provides health benefits, including short-term disability payments, to employees unable to work because of nonwork injuries.

Repa suffered an injury unrelated to work that required her to be absent for six weeks. During that period, she received short-term disability payments from the WHF in the amount of $300 each week. When Repa applied for FMLA leave from Roadway, the company granted the leave, but notified Repa that she was “required to substitute any accrued paid leave for any unpaid FMLA leave.”

Repa sued under the FMLA, alleging that Roadway violated the act by requiring her to use up sick and vacation leave while she received WHF benefits. The district court granted Repa’s motion for summary judgment, concluding that because Repa received WHF benefits, Roadway could not require her to substitute paid vacation and sick time for FMLA leave.

On appeal, the 7th Circuit agreed. In response to Roadway’s assertion that the language of the FMLA allows substitution of paid leave for FMLA time, the court cited the federal regulation that limits that substitution when “leave pursuant to a temporary disability plan is not unpaid,” as in the case of workers’ compensation leave or paid maternity leave. While Roadway argued that the regulation applied only to leave benefits paid by an employer’s own temporary disability benefit plan, and not a third-party benefit plan, the court found nothing in the language of the regulation that supported such a limitation. Therefore, Repa’s motion for summary judgment was affirmed, obligating Roadway to reinstate Repa’s vacation and sick leave time.

Repa v. Roadway Express Inc., 7th Cir., No. 06-2360 (Feb. 26, 2007).

Professional Pointer: Because Roadway failed to challenge the validity of the applicable regulation at the district court level, it was precluded from doing so on appeal. Therefore, the company could not argue that the regulation is invalid because the language actually permits employees to extend leave beyond the 12 weeks allotted by the FMLA (by allowing employees to take vacation and/or sick leave consecutively before or after a 12-week FMLA leave). Because the court declined to address the validity of the regulation, employers should be aware of the fact that employees who collect disability benefits from third-party sources may be entitled to use paid vacation and/or sick leave in addition to FMLA-related leave.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcotein Pittsburgh.

Editor’s Note: This article should not be construed as legal advice.


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