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Employer May Not Force Employees to Exhaust Vacation/Sick Pay Before Invoking FMLA

A recent opinion published by the Seventh U.S. Circuit Court of Appeals holds that employees may not always be compelled by their employers to exhaust vacation or sick leave before invoking the Family Medical Leave Act (FMLA). In Repa v. Roadway Express, Inc. (7th Cir. 2007) __ F.2nd __, defendant Roadway Express, Inc. violated the FMLA (29 U.S.C. § 2601 et seq.) when it required an employee on FMLA leave to concurrently use her accrued paid sick and vacation leave. Interpreting 29 C.F.R. § 825.207(d)(1), the court concluded that Roadway could not require its workers to substitute paid leave for unpaid FMLA leave because the employee was receiving disability benefits from a benefit plan to which Roadway was required to contribute under a CBA.

Roadway argued, among other things, that the FMLA permits employers to substitute paid leave for FMLA leave under such circumstances. Repa responded that, because she was receiving disability benefits from a multi-employer benefit plan, the FMLA provision allowing the substitution of paid leave did not apply. The 7th Circuit agreed.

The FMLA guarantees certain employees up to twelve weeks of unpaid medical leave each year. However, employees may elect and/or employers may sometimes require, that the employee substitute any accrued paid vacation time, PTO or sick leave personal leave, for all or part of the time given under the FMLA. 29 U.S.C. § 2612(d)(2). However, this substitution is limited by Department of Labor regulations. One such regulation (Section 825.207(d)(1)) provides, in pertinent part, that:

"... Because the leave pursuant to a temporary disability benefit plan is not unpaid, the provision for substitution of paid leave is inapplicable. However, the employer may designate the leave as FMLA leave and count the leave as running concurrently for purposes of both the benefit plan and the FMLA leave entitlement. If the requirements to qualify for payments pursuant to the employer's temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments from the plan and use unpaid FMLA leave or substitute available accrued paid leave."

Employers often require that an employee substitute all paid leave for FMLA leave to avoid giving the worker more than twelve weeks leave. However, under the DOL regulations, as interpreted and applied by the 7th Circuit here, it would appear that any employee receiving disability pay might be permitted to extend their FMLA leave by other paid leave offered by the employer, such as PTO, vacation or sick leave.

You can download a pdf of the Repa decision here.


Lets initiate a revolt agains insensitive employers who use staff as a piece of equipment. Lets collect together and make sure that employers change thier policies to either care for the people who work for them or shut shop. Pass the word on.. http://britishairways-alousyemployer.blogspot.com/


I'm tired of employees using FMLA as a way to gain extra time off and leaving the rest of us to pick up their slack. I understand that these leaves are here to protect the employee (or family member) with a medical need but I'm finding that it's being abused more than used properly. I've spoken with many employees who've gone to other countries, had the paperwork filled out by a doctor there and been granted FMLA. The problem is the person listed as the sick one is not the employee but they filled it out as if it was. Who holds them accountable? No one, there in another country. all the employee has to do is ask that they change the name on the paperwork so it mathces their leave. Sort of silly don't you think?

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