Wednesday, February 28, 2007

Employer’s Paid Leave Policy Illegal Under FMLA

The Seventh Circuit held that an employer’s FMLA policy violated the statute because it required the use of vacation pay when the employee already was receiving disability benefits. In Repa v. Roadway Express, the employee took FMLA for surgery.  Under the employer’s policy, she was required to use vacation and sick time as a “substitute” for FMLA leave. However, she also received $300 per week from a union’s disability insurance plan.  Although she received both forms of pay, she sued Roadway, claiming that the requirement that she use paid sick and vacation benefits violated the FMLA because of a DOL regulation, 29 CFR 825.207(d)(1).  The Seventh Circuit agreed, rejecting all of Roadway’s arguments that the regulation was not applicable.  The Court refused to consider Roadway’s argument that the regulation is invalid because Roadway did not make the argument in the district court.