Legal Alert: Employee Cannot be Required to Comply with CBA's Two-Week Notice Provision When Substituting Paid Vacation for Unpaid FMLA Leave

Date   Nov 1, 2005
A federal court in Pennsylvania recently held that an employer's policy requiring two weeks notice before taking paid vacation could not be applied when substituting paid vacation time for unpaid leave under the Family and Medical Leave Act (FMLA).

A federal court in Pennsylvania recently held that an employer's policy requiring two weeks notice before taking paid vacation could not be applied when substituting paid vacation time for unpaid leave under the Family and Medical Leave Act (FMLA). See Soslovey v. Wyoming Valley Health Care System-Hosp.

In Soslovey, the plaintiff missed two partial days and three full days of work to care for her father, who subsequently died. These days were designated as FMLA leave and the plaintiff was paid for two full days of leave pursuant to the employer's "family illness" policy. However, the employer denied the plaintiff's request to substitute paid vacation time for the two partial days and one full day of unpaid leave because the plaintiff had not complied with a two-week notice provision in the vacation policy. The vacation policy was part of the collective bargaining agreement (CBA) covering the plaintiff's employment.

The plaintiff grieved the denial of the right to substitute paid leave and the arbitrator ruled in favor of the employer. The plaintiff subsequently sued the employer in federal court, claming the employer violated the FMLA by refusing to permit her to substitute paid leave for FMLA leave. The court ruled in favor of the plaintiff on the parties' cross motions for summary judgment, holding that applying the two-week notice provision to the plaintiff's request to substitute paid vacation for unpaid FMLA leave violated the FMLA.

The FMLA provides that employees may elect or employers may require employees to substitute any accrued paid vacation leave, personal leave, or family leave provided by the employer for any part of the twelve weeks of FMLA leave. The court noted that the FMLA provides that collective bargaining agreements may grant more rights than the statute, but may not diminish FMLA rights. The court also noted that regulations issued by the Department of Labor (DOL) interpreting the FMLA provide that an employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave "in any situation" where the employer's uniform policy would not normally allow such paid leave, but specifically states that "no limitations" may be placed on the employee's election to use paid vacation time. The court held, "[g]iven that the regulation speaks to the allowance of limitations in some circumstances, if it were intended that the use of paid vacation time could be limited, the regulation would say so. Because it does not, we take 'no limitations' to mean just that."

The court held that the notice provision places an impermissible requirement on the use of accrued vacation leave that diminishes the right to use leave when the need for FMLA leave is not adequately foreseeable. The court also distinguished situations in which the right to take vacation has not yet accrued. In such situations, the FMLA does not require the employer to permit the employee to substitute paid vacation time for FMLA leave. However, the court described the employer's notice provision as a procedural rather than substantive impediment to substituting paid leave and held that it is appropriate to treat such impediments differently.

The court also held that although the notice provision does not prevent an employee from taking FMLA leave, it discourages one from doing so if the need for the leave is unforeseeable; despite having ample accrued vacation time, an employee could have to go two weeks without pay - an economic hardship that could discourage the employee from taking appropriate FMLA leave. Finally, the court held that the employer had no business reason, other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy, to prohibit an employee from taking paid time off during the two-week notice period when the need for the FMLA leave was not foreseeable.

Accordingly, the court granted judgment in favor of the plaintiff and awarded her lost wages, interest and liquidated damages, as well as attorney fees. Additionally, the court ordered the employer to stop enforcing the notice requirement when an employee seeks to substitute paid vacation for FMLA leave and is unable to provide two weeks notice.

Employers' Bottom Line:

Although this decision is not binding on employers located outside of the court's jurisdiction in Pennsylvania, it is likely that other courts would reach a similar conclusion faced with these facts. Generally, where a leave policy is more restrictive than the FMLA, a court will apply the FMLA requirements rather than those of the leave policy. It is important that employers review their time off and leave policies to ensure they comply with the FMLA, especially with regard to notice requirements.

If you have any questions regarding the issues addressed in this article, the FMLA, or labor or employment-related issues in general, please contact the Ford & Harrison attorney with whom you usually work.