Get access to the exclusive HR Resources you need to succeed in 2018.
Sign up for free email newsletters and get more SHRM content delivered to your inbox.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 14 cities across the U.S. this fall.
Gain the skills you need to rise to the next level in your career. Jon us at SHRM's Leadership Development Forum, October 2-3 in Boston.
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
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.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Join SHRM's exclusive peer-to-peer social network
SHRM’s HR Vendor Directory contains over 10,000 companies