March 2001

In a case decided on January 22, 2001, the United States Court of Appeals for the Eleventh Circuit held that an employee's failure to exhaust his paid sick leave did not render him ineligible for leave under the Family and Medical Leave Act ("FMLA"). In Strickland v. Water Works and Sewer Board of the City of Birmingham, No. 99-14103 (11th Cir. 2001), the plaintiff-employee was terminated by his employer after he left the work site allegedly due to a diabetic attack. The employee argued that his reason for leaving the work site, a diabetic attack, qualified him for FMLA leave and subsequent reinstatement. On summary judgment, the lower District Court held that the FMLA provided no relief to the employee because he had not previously exhausted all of his paid sick leave provided by the employer. The Eleventh Circuit Court of Appeals, however, disagreed with the lower court's holding.

Generally, the FMLA provides eligible employees with up to 12 workweeks of unpaid leave during any 12-month period. The FMLA further provides, however, that if an employer offers paid leave benefits to its employees, "[a]n eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for ... any part of the 12-week period" of FMLA leave. 29 U.S.C. Sec. 2612(d)(2)(B). Despite admitting that the foregoing provision was somewhat "unartful," the Eleventh Circuit nevertheless concluded that the lower court misinterpreted the provision as permitting employers with paid sick leave policies to choose whether an employee's FMLA qualifying absence is either unpaid and protected by the FMLA, or paid and unprotected. Rather, the Eleventh Circuit held that "neither Congress nor the Department of Labor could have intended ... to allow employers to evade the FMLA by providing their employees with paid sick leave benefits," and concluded that a better interpretation is that an employer who is subject to the FMLA and also offers a paid sick leave policy to its employees has two options when an employee qualifies for leave under both the FMLA and the employer's paid sick leave policy -- the employer may either (1) permit the employee to use his or her FMLA leave and paid sick leave sequentially or (2) require that the employee use his FMLA leave and paid sick leave concurrently. The employer may not, however, deny the employee the right to FMLA leave and its other protections, such as reinstatement.

This is yet another case which highlights the importance of employers taking the time to analyze and focus on how to reconcile their internal benefits and leave policies with those mandated by various federal and state employment related laws, such as the FMLA. We at Rhoads & Sinon LLP have been encouraging our clients to revisit these issues in light of cases such as Strickland, so as to make sure that company benefits and leave policies are not only lawful, but that they are clearly communicated to and understood by the employees.