Employers routinely require employees out on family medical leave to exhaust paid leave such as sick and vacation concurrent with their FMLA leave.  The purpose of this requirement is to prevent extension of the 12 weeks allowed by Family Medical Leave Act (“the Act”) with  unused paid leave time.  This practice has not been the subject of litigation until now.  Last week, the 7th Circuit Court of Appeals ruled against the employer in Reba v. Roadway Express, Inc. in a case involving this kind of mandatory use of paid leave. 

The employee in Reba v. Roadway Express needed approximately six weeks off from work due to a serious health condition.  She was granted FMLA leave for her absence, and pursuant to its regular policy, the employer required her to use all her accrued vacation and sick leave.  The employee received $300 per week from a state run disability program.  She claimed the employer violated the Act by requiring her to use accrued sick and vacation during her FMLA leave.

Roadway Express argued that since it did not sponsor the disability benefit, the leave was unpaid, and it should be allowed to compel the employee to use accrued vacation and sick leave concurrent with her FMLA leave.  Roadway also argued that any regulatory effort to prevent the substitution of paid leave was an impermissible narrowing of the statute, and therefore the regulation was invalid.   The Court rejected these arguments.  Significantly, Roadway had not challenged the regulation’s validity before the trial court, and the Court of Appeals therefore refused to consider that argument.  This means that it is still an open question whether an employer can compel the mandatory use of paid leave allotments during an FMLA leave where the employee is also receiving benefits from some third party.  However, prudent employers should examine their practices, and determine whether there are circumstances in which employees could be on FMLA leave while receiving benefits from some source other than an employer sponsored program, and should make a conscious choice whether the company wants to insist that vacation and sick leave run concurrent with the FMLA leave in those situations.