Roadway Express, Inc. (“Roadway”) violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C. �2601, et. seq., when it required an employee on FMLA leave to concurrently use her paid sick and vacation leave, ruled the 7th U.S. Circuit Court of Appeals on Feb. 26. Repa v. Roadway Express, Inc, —F. 2nd—, 7th Cir., No. 06-2360, 2/26/07. The 7th Circuit concluded that a Department of Labor (“DOL”) regulation (29 C.F.R. �825.207(d)[1]), which was the subject of conflicting interpretations by the parties, precluded Roadway from requiring the employee to substitute paid leave for unpaid FMLA leave because the employee was receiving disability benefits from a health and welfare benefit plan to which Roadway was required to contribute pursuant to a multiemployer bargaining unit collective bargaining agreement.
Roadway employee Alice Repa suffered a non-work-related injury that required surgery and a six-week absence from work. Repa applied for and was granted disability benefits in the amount of $300 per week for six weeks from the administrator of the Wisconsin multiemployer health and welfare fund. At the same time, Repa requested and was granted FMLA leave by Roadway. Roadway notified her that she was required to substitute any accrued paid leave for any unpaid FMLA leave. Upon return from leave, Roadway paid Repa for five days of sick leave and two weeks of vacation. Repa received this in addition to the $300 per week she had received from the multiemployer fund.
