No FMLA Violation When Officer Loses Eligibility For Sick Leave Incentive

The City of Omaha, Nebraska awards a police officer who does not take more than 40 hours of sick leave in a particular year with two hours of additional annual leave for each pay period during that year in which the officer had at least 1,000 hours of accrued sick leave. For all of 2003, Officer Jeffrey Chubb had at least 1,000 hours of accrued sick leave.

In 2003, Chubb took three weeks of leave for surgery. Under the Family and Medical Leave Act (FMLA), he was entitled to “substitute” paid sick leave for the FMLA’s “default” status of unpaid leave. Chubb chose the substitution, and received paid sick leave for the three-week period. Since the sick leave that Chubb took exceeded 40 hours, the City refused to award him the annual leave bonus after he returned to work.

Chubb filed a lawsuit under the FMLA, alleging that the City failed to “restore him to an equivalent position with equivalent employment benefits” after his return from sick leave. Chubb pointed to regulations issued by the Department of Labor providing that bonuses “for job-related performance such as for perfect attendance” must be available to an employee upon return from FMLA leave.

A federal court disagreed with Chubb. The Court found that the City “did not deny Chubb the annual leave bonus because he took his FMLA leave; instead, it refused him his bonus because he took paid sick leave concurrently with his FMLA leave. We decline to punish the City for putting Chubb in a better position than he would have enjoyed had the City fulfilled only the minimum duties under the FMLA.”

Chubb v. City of Omaha, Nebraska, 2005 WL 2347762 (8th Cir. 2005).

This article appears in the November 2005 issue