In Wilde v. City of Lincoln, No. 4:05CV3293, 2007 U.S. Dist. LEXIS (D. Neb. March 27, 2007), the employee alleged that the City interfered with his FMLA rights by counseling him for using sick leave in excess of what was permitted by the collective bargaining agreement. Wilde argued that because he used the sick leave in conjunction with FMLA the counseling discouraged him from using FMLA which interfered with his FMLA rights. The Court disagreed.
The Court held that, even assuming that he used sick leave to care for family members with serious health condition, the City did not interfere with his FMLA rights by counseling him. Wilde's sick leave requests periodically exceeded the amount of leave available to him under collective bargaining agreement. He was, however, never denied sick leave. The City, the Court concluded, had the right to counsel Wilde to avid using sick leave at a rate exceeding that permitted under his union agreement.
Comment: An employee may use paid leave in conjunction with FMLA leave. An employer may, however, continue to enforce existing company policies regarding the use of paid leave. If an employer would counsel an employee for exceeding the amount of sick leave they have available in the absence of FMLA leave, the employer may counsel an employee who takes sick leave in conjunction with FMLA leave for exceeding the amount of sick leave available. The use of FMLA leave does not insulate the employee from the normal rules governing paid leave. On the other hand, employers must be careful to not treat employees who take FMLA disparately compared to employees who have not taken FMLA leave. For example, if the employer has never counseled an employee for exceeding the amount of sick leave available but counsels an employee who took FMLA, the employer may violate the anti-discrimination provisions of the FMLA.