California Employers Cannot Require Employees to Use Vacation During FMLA Leave

FMLA leave is generally unpaid. The FMLA generally provides employers with the right to require employees to use vacation and sick leave (or other paid leave) during FMLA-covered leave. But there are some rather badly written DOL regulations that restrict the employer's right to when leave is "unpaid." And when an employee receives benefits such as under a temporary disability leave benefit plan the leave is not "unpaid" and the employer cannot require the employee to use vacation or sick pay. The Seventh Circuit Court of Appeals recently applied that regulation in Repa v. Roadway Express, Inc. The effect of the decision is that California employers cannot require employees to use vacation, sick or other paid leave when the employee is receiving state disability, PFL, or workers' compensation benefits. If you need more information on this, we will have an article posted on our website about it next week.