Employers Can Run Sick Leave Concurrently with FMLA Time Off

May 17, 2006 (PLANSPONSOR.com) - The 8th US Circuit Court of Appeals ruled Friday that The Family and Medical Leave Act (FMLA) allows an employer to require its workers to substitute any accrued sick leave for leave provided by the act.

According to the court opinion, the city of Republic, Missouri did not violate the FMLA rights of police officer Robert Slentz by limiting his leave to the 12-week FMLA period in spite of the fact that he had accrued more time in sick leave.

Slentz had corrective surgery on his shoulder after an injury that was not related to work. The city informed him that he would get the 12-week FMLA leave, at the end of which he would have to provide physician approval to return to work or was expected to resign.

At the end of the period, according to the court document, Slentz was not released back to work by the doctor, who said his recuperation required a few more weeks. Slentz resigned then filed a suit against the city claiming that the it wrongfully interfered with his rights under the FMLA and he should have received the 12 weeks in addition to his accrued sick leave.

The appellate court, howeverl, affirmed a lower court’s granting of summary judgment in favor of the city, saying it is left to the employer’s discretion to “permit an employee to use FMLA leave and sick leave sequentially or … require that the two run concurrently.”

In a dissenting opinion, Circuit Judge Heaney said the majority ignored the clear language of the FMLA statute that says “the taking of leave under section 2612 of this title [FMLA] shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.”

The full opinion of the court can be found here .