In Repa v. Roadway Express, Inc., Alice Repa sued her employer, Roadway Express, Inc., alleging that Roadway violated the FMLA by requiring her to use vacation and sick leave while she was on FMLA leave. Repa suffered a non-work-related injury that required surgery and a six-week absence from work. Repa, a member of a collective bargaining unit, sought and was granted disability benefits of $300 per week for the six weeks of leave through a third-party disability plan. Repa also requested FMLA leave from Roadway, which was granted. Roadway informed her that she was required to “substitute any accrued paid leave for any unpaid FMLA leave.” Once Repa returned from leave, Roadway paid her for five sick days and two weeks of vacation. Repa received this pay in addition to the $300 per week she received through the disability plan.

An employer is not required to pay an employee while the employee is on FMLA leave, 29 U.S.C. §2612(c), though an “employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided,” under the FMLA, 29 U.S.C. §2612(d)(2). This substitution provision is limited by Department of Labor regulations, including 29 C.F.R. § 825.207(d)(1), which provides, in part,

“Because the leave pursuant to a temporary disability benefit plan is not unpaid, the provision for substitution of paid leave is inapplicable. However, the employer may designate the leave as FMLA leave and count the leave as running concurrently for purposes of both the benefit plan and the FMLA leave entitlement. If the requirements to qualify for payments pursuant to the employer’s temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments from the plan and use unpaid FMLA leave or substitute available accrued paid leave.”

Repa filed suit to force Roadway to restore her sick leave and vacation benefits, claiming that she should not have been forced to use her paid time off while on FMLA leave. Roadway moved for summary judgment on grounds that the FMLA and its regulations permit an employer to substitute paid leave for FMLA leave. Roadway argued that 29 C.F.R. §825.207(d)(1) was not applicable to Repa’s claim because it precluded paid leave substitution only when an employee was receiving disability benefits for the birth of a child. Roadway also contended that because the disability benefits Repa received were not from an employer disability plan, the substitution was appropriate. The District Court granted Repa’s motion for summary judgment, finding that because Repa received disability benefits, Roadway could not require her to substitute her paid leave for her FMLA leave. The U.S. Court of Appeals for the 7th Circuit affirmed.