Employer Not Allowed To Designate Sick Leave As Using Up FMLA Eligibility

The collective bargaining agreement between Local 1347 of the International Association of Fire Fighters and the Town of Watertown, Massachusetts is silent on the issue of whether the Town is entitled to force employees to use Family and Medical Leave Act (FMLA) leave when employees are on personal sick leave. When the Town began charging periods of sick leave against an employee’s FMLA eligibility, Local 1347 challenged the decision in arbitration. An arbitrator upheld Local 1347’s grievance.

Because the contract was silent on the issue, the Arbitrator felt comfortable looking to the past practice between the parties as well as any other “extrinsic” aid to interpret the contract. In particular, the Arbitrator reviewed a “side letter” agreed to between the parties in 2000, that described some circumstances under which FMLA leave would be taken.
In the end, the Arbitrator held that the use of FMLA leave by firefighters on sick leave was optional, and not mandatory. The Arbitrator ordered the Town to make all employees whole who had been adversely affected by the changed policy.

Town of Watertown and IAFF, LAIG 6526 (Fink, 2007).

This article appears in the December 2007 issue