The Federal Sector FMLA Blog

Known Availability of Unlimited Paid Leave Trumps Denial of FMLA Leave

In Santiago . New York City Police Department, No. 05 Civ. 3035 (PAC)(MHD), 2007 U.S. Dist. LEXIS 91880 (S.D. N.Y. Dec. 14, 2007), the employee called the NYPD's Military Extended Leave Desk and specifically asked for FMLA leave due to depression.  He was erroneously told that FMLA leave was not available.  Santiago was on prior notice that the NYPD provided unlimited paid sick leave.  Santiago did not seek paid sick leave but instead resigned.  His request for reinstatement a month later was subsequently denied.  He sued alleging violations of the FMLA.

In awarding summary judgment to the NYPD, the district court found that that the employee's explicit request for FMLA leave due to depression "cannot possibly constitute notice of a FMLA claim."  Alternatively, the court opined that dismissal was appropriate because Santiago could not establish that he was injured by the denial of FMLA leave.  The court noted that:

No injury can result when the available alternative [paid sick leave] is superior to the FMLA remedy.   

Santiago, the court observed, "could have had an unlimited, paid leave had he followed the applicable NYPD's procedure.  He chose not to pursue that route."

Comment: Many courts have found that to withstand a summary judgment motion an employee must establish that they suffered injury as a result of an employer's violation of the FMLA.  This is the first case that I am aware of that has found that an employee's awareness of a better paid leave alternative provided by an employer will defeat an employee's FMLA interference claim even if the employer acted in violation of the FMLA. 

Presumably, for this defense to apply an employer must demonstrate that (1) the alternative would cover the leave at issue [which could be up to the full 12 weeks of FMLA leave]; (2) the employee qualified for the alternative; and (3) the employee was on notice of the alternative. 

Counseling an Employee for Sick Leave Abuse Did Not Interfere with Employee's FMLA Rights

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.    

FMLA Does Not Permit Employers to Unilaterally Change CBA Regarding Substitution of Paid Leave for FMLA Leave

In Brotherhood of Maintenance of Way Employees, et. al. v. CSX Transportation, et. al., No. 06-2744, 2007 U.S. App. LEXIS 4782 (7th Cir. March 2, 2007), the Court held that the FMLA does not allow employers to violate collectively bargained contractual obligations protected by the Railway Labor Act (RLA) permitting employees, not employers, to control the right to substitute paid vacation and personal leave for unpaid FMLA leave. 

Suit was brought by a dozen unions contending that the interpretation of the FMLA by five railroad carriers violated employee collective bargaining rights to paid leave.  The collective bargaining agreements (CBAs) provided paid sick, personal, and vacation leave at the election of the employee.  An employee's use of each type of paid leave was governed by procedures for requesting leave, including seniority.  Under the CBA's, employer's could approve or disapprove of the leave, but could not force an employee to take paid leave over their objection.  In recent years the carrier's revised their policies to require in some circumstances that employee use paid leave concurrently with unpaid FMLA leave.  the policies were attempts to avoid "stacking"--that is, exercising the right to contractual paid leave on top of FMLA leave and, thereby , giving the employee the right to more than 12 weeks of leave (paid and unpaid) each year.

The unions argued that the change in policy violated the RLA.  The RLA governs labor-management relations in the railroad and airline industries.  If, the union's argued, a collective bargaining agreement grants employees the right to determine when or how they use paid vacation or personal leave, those provisions prevent the railroads from substituting such paid leave for leave under the FMLA. 

The carriers argued that the FMLA gives them the explicit authority to require substitution. The FMLA authorizes substitution of paid leave for FMLA leave at the employee's election, or the employer may require it.  29 USC 2612(d)(2)(A)-(B).  The carrier's argued that the FMLA trumps the RLA because it is newer and more specific, thus giving the carriers authority to unilaterally institute its anti-stacking policies.  The Court disagreed. 

The Court agreed with the unions' contention that the employer's action constituted an impermissible unilateral change in the terms and conditions of work prohibited by the RLA.  The Court rejected the employer's argument that the newer and more specific FMLA provisions trump the existing RLA prohibitions, characterizing the argument as "the esoteric realm of implied repeal or implied amendment of statutes."  The Court observed:

In looking at two statutes which might be said to deal with the same subject matter, we must apply certain principles.  A specific statute takes presence over a more general statute, and a later enacted statute may limit the scope of an earlier statute.  In re Johnson, 787 F.2d 1179 (7th Cir. 1986).  As to the two statutes involved in the present case, the FMLA is the more recent statute, but whether it ism ore specific depends on how you look at it.  It covers a more specific subject matter--family leave--but its application is far wider than the RLA. Additionally, the RLA grows out of specific needs of the railway industry (and later the airline industry), and from the perspective is more specific.  Asking which is more specific is like asking whether an avocado is more specific than a kiwi.

The RLA, the Court observed, "tells railroad what they must not do--change working conditions except in the manner dictated by the agreements or in [section] 156, which requires notice, a conference, and, in some cases, mediation. Section 2612 of the FMLA simply tells employers what they may do-- require substitution--not what they must do.  A reasonable conclusion is that, while substitution is allowed, carriers cannot require substitution without complying with the procedures set out in the RLA.  Using those procedures the carriers can, and should have, bargained for substitution provisions.

Comment: The decsion is not relevant to federal civil service employees.  Title II of the FMLA prohibits an employer from electing to substitue paid leave for unpaid leave over an employee's objection.

The decision is relevant to federal employee's covered by Title I, the CAA, and the PEOAA.  For federal employers with these employees, the FMLA provision that permits substitution of paid leave for unpaid FMLA leave does not empower employers to ignore their collective bargaining responsibilities and unilaterally impose paid leave substitution where existing collective bargaining agreements allow employees alone to substitute paid leave for unpaid FMLA leave.  To change such a policy employers must bargain with the union.

Interestingly, the Court concluded that Title 29 USC 2652(a) did not apply.  That section provides that nothing in the FMLA

[S]hall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act...

According to the Court, "[t]here is nothing in the CBAs which provides "greater family or medical leave rights" to the employees."  One could argue that allowing employees alone to decide whether they want to substitute paid leave for unpaid FMLA leave is itself a "greater leave right" for employees than the rights established by the FMLA.  Absent such a restriction, the FMLA would permit the employer to impose paid leave substitution even over the objection of the employee.

OPM Issues Final Regulations Expanding Sick Leave Usage

Federal civil service empoyees may use up to 480 hours of accrued sick leave for to provide care for a family member with a serious health condition and up to 104 hours of sick leave for general family care or bereavement purposes under new regulations issued by the Office of Personnel Management. 

The final OPM regulations, published in the August 17, 2006 edition of the Federal Register, became effective September 18, 2006. 

Under the new regulations, employees will not longer have to maintain minimum sick leave balance to be able to use their accrued and available sick leave.  Prior to this change, employees were requried to maintain 80 hours of sick leave in his or her sick leave account to be entilted to use up to the maximum 104 hours of sick leave for general family care/bereavement purposes or up to 480 hours of sick leave to care for a family member with a serious health condition. 

Agencies may advance up to up to 30 days of sick leave to an epmloyee for family care or bereavement purposes or to provide care for a family member with a serious health condition where requried by the exigencies of the situation for a serious disability  or ailment of the employee or a family member or for purposes releated to the adoption of a child.

Employees must apply for sick leave by means and within time limits esga blished by the agency.  Employees must request advance approval for sick leave to receive medical, dental, or optical examination or treatment, or, to the extent ossible, to provide care for an incapciated family member, to make arrangements necessitated by the death of a family member or to attend the funeral, and because the emloyee must be absent from duty for purposes relating to the adoption of a child.

The new OPM regulations set a governmentwide standard governing the time period an employee has to rpvodie medical documentation supporting an employee's request for sick leave.  Employees are not required to provide medical documentation in the absence of an agency request.  If medical documenation is requested, the employee generally has fifteen calendar days from the request to provide acceptable medical documentation.  If, despite the employee's good faith efforts, he or she is unable to provide the documentaiton with fifteen calendar days, the employee must provide the documentation within a reasonable period of time, but no later than 30 calednar days from the agency's request.  An employee who does not timely provide medical documentation is not entilted to sick leave. 

The new OPM regulations are codified at 5 CFR Part 630, Sections 630.401-406.

Comment:  The changes bring some of the sick leave provisions in line with the requirements of Title II of the Family and Medical Leave Act. 

Employer Did Not Interfere with Employee’s FMLA Rights by Running FMLA Leave Concurrent with Temporary Disability Plan Leave

In Skelton v. The Health Alliance, No. 1:04-cv797, 2006 U.S. Dist. LEXIS 74073 (S.D.Ohio Oct. 11, 2006) the court rejected the employee’s argument that her employer interfered with her FMLA rights by not allowing her to “preserve” her 12 weeks of FMLA leave while she was out on disability leave for the birth of a child.  The court, citing 29 CFR 825.207(d)(1), noted that an employer is permitted to both run and count FMLA leave concurrently with leave pursuant to a temporary disability benefit plan for purposes of the employee’s entitlement to twelve weeks of FMLA leave.  Because she was provided the full 12 weeks of FMLA leave to which she was entitled, the court granted the employer’s motion for summary judgment dismissing Skelton’s FMLA interference claim. 

Comment:  Understandably, to maximize the amount of leave available employees frequently look to have FMLA leave apply consecutively rather than concurrently with leave available pursuant to an employer’s regular leave policies.  Disability leave plans receive special treatment under Title I and the CAA.  Title II does not address disability leave plans.  The substitution of paid leave is addressed in Chapter 11 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc., 2003 & 2005 Supplement).