Saturday, October 22, 2005

employment - FMLA - advance notice provision

Solovey v. Wyoming Valley Health Care System-Hospital, MD Pa. - October 13, 2005

Held, that the employer's (ER) policy of requiring two-week advance notice before being able to take an accrued paid vacation day violates the FMLA. Summary judgment granted to plaintiff-employee.

Plaintiff's father was placed in hospice care in June 2003. On June 23, plaintiff left work in mid-shift after learning that her father's condition had worsened. She spent June 23 and 25 with her father and returned to work on June 26th, but left early when she learned that his condition had become critical. She remained out on June 27 and her father died on June 28.

Plaintiff was paid for June 23 and 24 through a policy of "family ill days." The ER deemed the other time missed as FMLA leave but denied her request to use accrued vacation time to cover her other absences, because she had not complied with the collective bargaining agreement (CBA) requirement that she give a two-week notice before taking a vacation in order that the absence qualify for use of paid vacation time. Plaintiff couldn't give such notice, because she didn't know of her need to use it until June 22nd.

The court agreed with plaintiff that sec. 2612 of the FMLA, 29 USC 2612(d)(2)(A), is an express grant allowing her to use accrued vacation w/o the restriction of a two-week notice policy. The statute also holds that a CBA may grant more rights than the FMLA but may not diminish FMLA rights. To adopt the ER's argument would mean that an employee who had ample accrued pain vacation time to substitute for FMLA leave might have to go w/o pay for up to two weeks in the common situation where a serious health situation requiring leave was not foreseeable. This is the kind of economic hardship the FMLA seeks to avoid. It is appropriate to treat a procedural impediment (two-week notice) to using paid leave differently from a substantive right to use the leave (e.g. has the leave time vested? how much has accrued?). The court also found that the ER had no business reason other than its desire to enforce strict adherence to the procedural aspects of the CBA vacation policy to prohibit an employee from taking paid time off during the two-week notice period, when the need for the FMLA leave was not foreseeable.

Donald Marritz, staff attorney
MidPenn Legal Services