Seventh Circuit Makes it Harder for Employers to Compel Employees to Burn Vacation During FMLA Leave
June 13, 2007 by Beeson Tayer & Bodine
Two recent decisions from the Seventh Circuit Court of Appeals could give pause to employers who require employees to burn their accrued vacation while on family medical leaves of absence.
In Repa v. Roadway Express, 477 F.3d 938, an employee took FMLA leave for a non-industrial injury. During her leave, she received short-term disability benefits from her union health plan. Her employer required her to take five sick days and two weeks vacation pay under its FMLA policy. The employee sued her employer for requiring her to use up her sick and vacation days while she was receiving disability benefits. The Court agreed with the employee, finding that FMLA regulations prevent employers from requiring employees to use their sick or vacation time while they are on a “paid” leave, even if the payments come from a source other than the employer. If this decision is followed in California, it could mean that any employee out on FMLA or CFRA leave who receives workers’ compensation, state shortterm disability or paid family leave benefits cannot be required to also use his or her sick or vacation time.
The Court answered a question that has vexed some of our clients in Brotherhood of Maintenance of Way Employees v. CSX Transportation, 478 F.3d 814: In a union shop where employees bid annually on vacation, can an employer require an employee to burn his or her vacation if an unscheduled FMLA leave becomes necessary? At least in the Seventh Circuit, the answer is “no.” The Court found that the FMLA permits, but does not require, substitution of sick or vacation leave for unpaid FMLA leave. If a collective bargaining agreement contains the right to bid on vacation leave, the employer may not violate seniority by requiring an employee to burn vacation leave while out on FMLA. Even though the decision arises under the federal Railway Labor Act, it affirms that an employer cannot require an employee to burn accrued leave if prohibited by a collective bargaining agreement, even if doing so would not violate the FMLA.
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