The 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 failure to utilize a known 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. 

Normal FMLA Employee Notice Requirements Do Not Apply Where Employee Uses Sick Leave

Generally, where the need for FMLA leave is foreseeable, an employee should give an employer 30 days advance notice of the time the employee needs off.  29 CFR 825.302(a).  If the need is foreseeable but with less than 30 days advance notice of the need, the employee should notify his or her employer of the need for FMLA leave "as soon as practicable," normally within one or two working days of learning of the need for leave.  29 CFR 825.302(a).  An employer may delay or, in some cases, deny leave to an employee that fails to provide timely notice of the need for FMLA leave. 

The FMLA allows for the substitution of available paid leave for unpaid FMLA leave.  Where paid leave is substituted, an employer must apply any less onerous notice requirements permitted by the employer's paid leave policy.   For example, if an employee (or employer) elects to substitute paid vacation leave for unpaid FMLA leave and the employer's paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the FMLA leave taken in these circumstances.  29 CFR 825.302(g). 

The interplay of the notice requirements of paid leave with unpaid FMLA leave was recently addressed in Simpson v. Office of the Chief Judge, No. 05 C 2592, 2007 U.S. Dist. LEXIS 75634, at *21-23 (N.D. Ill. Oct. 11, 2007).  There, the employer argued that the employee failed to give timely advance notice of the need for FMLA leave incident to planned surgery.  The employee gave notice the day before her absence was to begin.  Simpson took sick leave concurrent with FMLA leave.  Under the employer's sick leave policy, an employee was required to notify a supervisor "a minimum of one hour prior to beginning their tour of duty" that the needed to take sick leave.  The court, citing 29 CFR 825.302(a), found that Simpson provided timely notice of the need for FMLA leave.

Comment:  The case, surprisingly one of only a very few, reminds us that an employer's paid leave policies may greatly reduce the amount of advance notice of the need for FMLA leave that an employer may require an employee to provide.  Employers should review their paid leave policies to determine if changes need to be made so that they get the maximum advance notice of the need for FMLA leave that they are entitled to receive under the Act.  Where the employer has a labor union, such changes may require collective bargaining.

FMLA Regulations Do Not Defeat Company Policy to Run FMLA Leave Concurrent with Paid Leave

An employer has the right to require an employee to run FMLA leave concurrent with paid leave, even over an employee's objection.  Notwithstanding the language of 29 CFR 825.311(b) and 825.312(b), an employee cannot not defeat an employer's designation of paid leave as running concurrent with FMLA leave, thereby preserving FMLA leave for later use, by simply failing to provide medical certification.  Tippens v. AirNet Systems, Inc., No. 2:05-CV-421, 2007 U.S. Dist. LEXIS 23808 (S.D.Ohio March 30, 2007).

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 FMLA provision that permits employers to substitute 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.

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-cv-797, 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 the FMLA.  Because the leave is paid the FMLA rules governing substitution of paid leave do  not apply.

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.