<p class="msonormal"><span><font size="2" face="Arial">In a recent 8th Circuit Court of Appeals decision, the Court held that an employer did not improperly terminate an employee at the end of the 12-week FMLA (Family Medical Leave Act) period, despite additional sick leave available to the employee. In <u>Slentz v. City of Republic, Missouri</u>, a 5/12/06 Eighth Circuit decision, a police officer was off work for a personal shoulder injury. The City provided him notice that his FMLA leave would run concurrently with his paid sick leave, and that a fitness-for-duty slip would be required before he returned. As the end of his 12-week FMLA leave entitlement approached, the City again reminded him of the need for a fitness-for-duty slip, or expectation that his resignation would be tendered. Mr. Slentz´s doctor felt he needed several more weeks of time off to recover before he was returned to work, and therefore, Mr. Slentz tendered his resignation. Slentz subsequently sued the City, asserting they had wrongfully interfered with his FMLA rights. </font></span></p>
<p class="msonormal"><span><font size="2" face="Arial">At the time Mr. Slentz´s FMLA time expired, he still had over 200 hours of accrued sick leave banked. He claims the City improperly limited his FMLA leave, since he had this additional banked sick leave available to him. However, the Court held that the FMLA is a maximum leave statute, providing employee´s a maximum of 12 weeks of unpaid leave for serious health conditions, as well as various family situations, and no job security provisions after that time has expired. The FMLA also allows an employer to run accrued paid leave concurrently with the unpaid FMLA leave (<i>ed. note: but keep in mind that in states such as Wisconsin, the employee has the option of choosing not to run such leave concurrently)</i>. The employer must advise the employee in advance that these leaves will run concurrently, and in Mr. Slentz´s case, the employer provided proper notice of the concurrent leave. </font></span></p>
<p class="msonormal"><span><font size="2" face="Arial">Employers should be cautioned in reading the Slentz opinion too broadly - Mr. Slentz did not file a claim that asserted violation of his collection bargaining agreement, or other wrongful discharge grounds, asserting only a claim limited to violation of the FMLA. Judge Heaney wrote a lengthy dissent asserting his view that the City´s actions in the Slentz case deprived Mr. Slentz of a contracted-for benefit, and to terminate him prior to allowing him to use his accrued sick leave was using the FMLA to limit Mr. Slentz´s additional employment benefits, which the FMLA expressly was not intended to do. However, Mr. Slentz did not assert a claim that broadly, and it is difficult to say what the majority of the Court would have done if he had broadened the scope of his claim against his employer beyond the FMLA. </font></span></p>
<p class="msonormal"><b><span><font size="2" face="Arial">PRACTICE TIP:</font></span></b><span><font size="2" face="Arial"> In cases where the employer´s personnel and benefit policies provide paid or unpaid leave more generous than the 12-week unpaid leave under the FMLA, tread carefully and consult with your company´s attorney before terminating the employee simply because the FMLA leave has been exhausted. Whether the additional accrued benefits or disability leave provide additional job security rights may depend on the wording of the related plan, policy or contract. Similarly, employers may want to examine their leave and benefits policies to determine whether they are providing additional job security rights beyond the 12-weeks granted by the FMLA, on either a discretionary or non-discretionary basis, to confirm they are providing the benefit they intend to provide, and to instruct their human resources personnel, accordingly.</font></span></p>
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<p class="msonormal"><span><font size="2" face="Arial">Questions regarding FMLA? Contact Kathy Bray at 218.529.2427 or <a href="mailto:ksb@hanftlaw.com">ksb@hanftlaw.com</a>.</font></span></p>
