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New FMLA Rulings and Paid Sick Leave Law
Employment Law Group Update | 5/1/2007

A Maine employee was found to be eligible for FMLA even though he had not worked for the employer for 12 consecutive months before requesting leave.
An employee had a 5-year break in service and had been back on the job at an auto dealership for 7 months (and over 1250 hours) when he developed a medical problem. Because the employee had not been working for 12 consecutive months when he requested leave, he was terminated for excessive absenteeism. The federal district court ruled that an employee is eligible for FMLA if he has worked (1) at least 1250 hours during the 12 consecutive months prior to requesting FMLA leave; and (2) for the same employer for at least 12 months, but not necessarily consecutively. The distinction is important. The 1250 hour requirement must be satisfied after the employee returns to work from a break in service. The 12 month requirement can be satisfied by combining the months he worked before and after any break in service. Employers should carefully review FMLA eligibility requirements for any employee who has worked at least 1250 hours after returning to work from a break in service where the total employment exceeds 12 months.

A Wisconsin employee could not be forced to use PTO during a FMLA leave when the employee was receiving paid benefits.
A Wisconsin employee took six weeks off from work following surgery. She received $300 weekly payments from the employer’s temporary disability plan. The employer required her to use two weeks of accrued vacation and five days of accrued sick leave during her FMLA leave. The federal district court ruled that FMLA regulations prohibit employers from requiring employees to use their vacation or sick time while collecting disability benefits during an FMLA leave. A California worker who collects State Disability Insurance (SDI), Workers Compensation benefits or benefits from an employer’s disability plan cannot be forced to use accrued vacation or sick time (but can elect to do so). Employers should document an employee’s request to use paid vacation, sick time or PTO while they are receiving other disability payments.

These rulings will apply to all federal court cases interpreting the FMLA. The California Family Rights Act (CFRA) generally parallels the FMLA, so it is likely our California state courts will rely on these cases, particularly since they favor the employee.

New San Francisco paid sick leave law.
San Francisco voters approved a ballot measure mandating paid sick leave for all employees who work within the geographical boundaries of the city, whether or not the employer is headquartered in the city. San Francisco employees now must receive 1 hour of sick leave for every 30 hours worked. Small employers (fewer than 10 employees, including part-time and temporary workers) must allow employees to accrue up to 40 hours of paid sick leave. Larger employers must allow employees to accrue up to 72 hours. Employees may take paid sick leave for their own illness or to provide care for a sick child, parent, sibling, grandparent, grandchild, spouse, domestic partner, or "designated person." The requirements of the ordinance do not apply to employees covered by a collective bargaining agreement expressly waiving these requirements.

For further information regarding these or any other employment laws, contact any member of our Employment Law Group.