Repa v. Roadway Express

Just when you think you understand the integration of California's Leave Laws, an opinion out of the Seventh Circuit Court in Wisconsin changes the rules.

Last year the United States District Court for the Eastern District of Wisconsin decided the case of Repa v. Roadway Express. In that case, Repa, an employee of a commercial trucking company, went out on a Family Medical Leave Act (“FMLA”) leave for a non-work related injury. During the leave, she received disability benefits in the amount of $300 per week through a company disability plan. On the same day Repa applied for disability benefits, she notified Roadway of her need for leave under the FMLA. Roadway granted her request for FMLA leave. When Repa returned from leave, the company paid her for five sick days and two weeks of vacation. This was in addition to the $300 per week she received in disability benefits. Apparently upset that she was paid for the five sick days and two weeks of vacation (because she was saving up for a trip to Jamaica), Repa sued Roadway arguing the company violated the FMLA by requiring her to use her sick and vacation leave while receiving disability benefits.

Surprisingly, the court agreed stating Roadway could not require Repa to use her accrued sick and vacation time during her FMLA leave. The court made a specific distinction clarifying that its ruling only applied to paid FMLA leaves, not unpaid FMLA leaves. The result of the court opinion was that Repa should have been credited back the accrued time.

So the question is: How does this affect us in light of the uniquenesses under California law?

The bright line rule that comes out of this decision is that employers cannot require employees to use accrued sick or vacation time during any portion of an FMLA leave that is paid. However, employees may elect to voluntarily use accrued sick and vacation time. This change likely implicates company FMLA and CFRA election forms as well as company policies and employee handbooks. Under California law, employees may be paid during a portion of an FMLA leave if receiving compensation through State Disability Insurance, Paid Family Leave, or Workers' Compensation. This decision creates an explicit conflict with California's Paid Family Leave law which specifically grants employers the right to require employees to take up to two weeks of vacation prior to taking a paid family leave. However, employers should note that they may require employees to use accrued time during the one week waiting period present under both the State Disability Insurance and Paid Family Leave State Programs.

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