Use of Paid Sick Time Can Be Basis for Discipline Even If Used Concurrent with FMLA Leave

The Third Circuit in Tucker v. County of Monmouth, No. 04-3860, 2005 U.S. App. LEXIS 28156 (3d Cir. Dec. 19, 2005) agreed with the lower court that the County did not violate the FMLA rights of two corrections officers when it suspended them for exceeding their total allotted sick time for the year.  Part of the paid sick leave ran concurrent with FMLA leave.  The employee’s argued that the County violated the FMLA by counting the paid sick leave they used concurrent with FMLA leave against them for purposes of their suspension.  They argued, essentially, that the County’s sick leave policy prohibiting employee’s from using more paid leave then they had available did not apply where such leave is taken in conjunction with FMLA leave.  The Third Circuit disagreed.  Addressing the employee’s argument, the court opined: “In other words, they want more paid sick time than other County employees got.  But their sick time did not become unlimited paid sick time simply by virtue of having been taken during an FMLA-approved work absence.”  The court concluded that because the County would have suspended the employees for their sick-time violations had they taken no FMLA leave, it did not violate the FMLA by doing so where some FMLA was taken concurrent with such sick leave.

Comment:  The case reminds us that the taking of FMLA leave does not insulate employees from discipline for violations of legitimate employer attendance policies. The decision is generally applicable to all federal sector FMLA variants.