The Seventh Circuit Court of Appeal confirmed that employers cannot require employees to substitute accrued paid leave for unpaid leave under the Family and Medical Leave Act ("FMLA") when the employee is receiving paid benefits during the FMLA leave, such as benefits under state disability, the Paid Family Leave, or workers' compensation programs.
In Repa v. Roadway Express, Alice Repa took a six-week FMLA leave for an injury not related to work. Under her employer's policy, Repa was required to exhaust her accrued vacation and sick time during her FMLA leave. However, Repa also received $300 per week from her union's disability insurance plan. Repa sued, claiming that her employer's requirement that she use paid sick time and vacationbenefits while she was receiving disability benefits under a separate plan violated the FMLA. The Seventh circuit Court of Appeal agreed.
While the FMLA generally provides employers with the right to require employees to use vacation and sick leave (or other paid leave) during FMLA-covered leave, employers may not mandate such use when the leave is not "unpaid." The court held that when an employee receives benefits under a temporary disability leave benefit plan, the leave is not "unpaid" and thus the employer cannot require the employee to use vacation or sick pay in lieu of unpaid FMLA leave.