Case suggests an approach to accrued leave that doesn’t leave you with an FMLA violation lawsuit.
The FMLA can amount to a basket of snakes for HR pros in many ways, including benefits management.
For instance, there’s the slippery question of how to handle an employee’s accrued leave – vacation, sick or personal – when the person applies for FMLA leave.
A federal court has just handed down a decision that gives some guidance on how to avoid FMLA violation.
Sick leave left over
The case involved a Missouri employer that terminated an employee after he used up his 12 weeks of FMLA leave and still wasn’t medically cleared to work.
The employer had run the employee’s accrued sick leave concurrently with the FMLA leave, but he still had sick leave left when he was let go. He sued for FMLA violation.
The court ruled for the employer, saying that “tacking on” FMLA leave to other kinds of time off in order to pile up more than 12 weeks total was an FMLA violation.
It would be nice if that were the end of the story. You’d have clear legal backing to do what this employer did.
But it’s not quite so clear. One of the three judges dissented, and the dissent could sway courts elsewhere – such as where you are. This judge said that while employees indeed couldn’t “tack on,” employers depriving employees of benefits earned prior to FMLA leave could also count as FMLA violation. That’s what the employer in this case did, the dissenting judge claimed.
Where does all this leave you?
Running employees’ FMLA leave concurrently with other kinds of leave in not an FMLA violation.
But if they have accrued time off coming that exceeds 12 weeks, and they don’t get to take it, be prepared to compensate them with an equivalent, such as cash.
Cite: Slentz v. City of Republic, MO, No. 05-1663, 8th Cir., 5/12/06.
