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Employment Law Alert: Interesting FMLA Case Involving Substitution Of Paid Leave

In a recent case decided by the Seventh Circuit Court of Appeals, Repa v. Roadway Express Inc., the Court upheld summary judgment in favor of a plaintiff who claimed that her employer, Roadway Express, violated the FMLA by substituting accrued paid leave for a portion of her FMLA-qualifying leave.

The plaintiff requested and took six weeks of leave under the FMLA for a serious health condition that prevented her from being able to work. The condition was covered under Roadway’s short-term disability leave plan, and the plaintiff received $300 per week in disability benefits for the entire time she was off work. Despite this coverage, Roadway substituted the plaintiff’s accrued paid leave (seven days of sick and vacation time) for part of her FMLA leave. It did so under an FMLA regulation, 29 C.F.R. § 825.207, that allows employers to substitute accrued paid leave for unpaid FMLA leave under certain circumstances. However, a portion of that regulation -- specifically 825.207(d)(1) -- says that “[b]ecause the leave pursuant to a temporary disability benefit plan is not unpaid, the provision for substitution of paid leave is inapplicable.” Based on this language, the Seventh Circuit agreed with the trial court’s finding that Roadway violated the FMLA by substituting the plaintiff’s accrued paid leave for a portion of her FMLA leave. The FMLA leave she took was covered under a short-term disability benefits plan. Therefore, it was not unpaid leave, and the portion of the regulation dealing with substitution of accrued paid leave for unpaid FMLA leave was inapplicable.

Bottom Line

This case is a good reminder to carefully review the FMLA regulations in responding to requests for FMLA leave. Sometimes, it’s easy to focus so much on a “general rule” that you lose sight of an exception.

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