The Vermont Supreme Court ruled on June 8, 2012 that a person taking unpaid leave under the Parental and Family Leave Act does not accrue vacation or sick leave during unpaid leave under the Act.
The issue arose when the Human Rights Commission, on behalf of an employee of the State Agency of Transportation, claimed that vacation and sick leave were two of the employment benefits that the PFLA requires to be continued during her period of unpaid parental leave.
As we described in a prior Dinse Brief, the trial court rejected the contention. The Vermont Supreme Court recently affirmed that decision. Both courts concluded that two factors indicate the legislature’s intent that the benefits that must be continued are those provided by insurance coverage: 1) the statute calls for continuation of benefits “under the conditions that coverage would be provided if the employee continued in employment;”and 2) that the employee may be required to contribute to the cost of benefits during the leave. The word “coverage” is most commonly used in reference to insurance, which would also account for the provision allowing the employer to continue to charge the employee for his or her contribution to the cost. Both factors indicate that vacation and sick leave, having nothing to do with insurance coverage and not imposing any cost to contribute to, were not intended by the legislature to be benefits continuing during PFLA leave.
A third reason was the inconsistent or even contradictory outcome that could occur if the unpaid leave the statue requires the employer to provide were to become a paid leave as a result of an employee’s use of leave accrued while on unpaid PFLA leave; thereby getting paid for up to six weeks of a future PFLA leave.
Although the Court limited its discussion to Plaintiffs’ use of parental leave the Courts reasoning applies with equal force to family leave under the PFLA.
Note that if an employee chooses to use previously accrued paid leave as part (up to six weeks is allowed) of their PFLA leave, they would accrue vacation and sick leave during the paid part of the leave.
Also note that this claim and decision were based on the statutory language. A contract or handbook may provide an employee with the right to more generous provisions for accrual of vacation and sick leave.