By: Paul N. Lalley, Esq.
Campbell Durrant, P.C.
In a precedential decision in Freeport Area School District v. Freeport Education Association, Pennsylvania’s Commonwealth Court ruled that U.S. Department of Labor guidance regarding the designation of leave under the Family and Medical Leave Act does not override inconsistent leave provisions in a collective bargaining agreement. The Freeport decision is a significant step back by the Court from its earlier, non-precedential decision in Towamencin Township v. PLRB regarding the impact of United States Department of Labor (USDOL)’s FMLA guidance and its relationship with CBA leave provisions.
The Freeport case was an appeal from an arbitration decision that involved the CBA’s leave provisions. Essentially, the CBA allowed employees to utilize other paid and unpaid leave and to defer using FMLA leave until after they had exhausted their other leave. An employee went on leave due to surgery, and the District notified the employee that it was designating it as FMLA leave, even though the employee wished to use other available leave first. The union filed a grievance, which an arbitrator sustained. The arbitrator relied on the leave language in the CBA notwithstanding that it conflicted with the USDOL’s guidance on an employer’s designation of FMLA leave.
The District appealed and the common pleas court vacated the arbitrator’s award, finding that the award was essentially based on an interpretation of the FMLA and that the arbitrator’s award conflicted with USDOL guidance on the employer’s designation of FMLA leave.
The union appealed and the Commonwealth Court reversed the lower court’s ruling and reinstated the arbitrator’s award. Appeals from grievance arbitration awards under Act 195 are subject to the “essence test,” in which courts will affirm arbitration awards so long as the issue is within the bounds of the CBA and the arbitrator’s award is rationally derived from the CBA. Of particular interest in this case, the Court noted that when an arbitrator’s award involves interpretation of a federal or state statute, the arbitrator must “follow well established case law relating to the statute as laid down by the courts.”
Here, the Commonwealth Court concluded that there were some federal court decisions that had interpreted the FMLA as allowing employees to decline using available FMLA leave. Moreover, the USDOL guidance was only guidance, not established case law and, therefore, not binding on the arbitrator. Most significantly, however, the Court distinguished its own 2022 decision in Towamencin Township v. PLRB that had followed the USDOL guidance on designation of FMLA leave because that decision was a non-precedential opinion and, therefore, “not binding authority.” In other words, the arbitrator in the Freeport case was not mandated to follow either the USDOL guidance or the Commonwealth Court’s own Towamencin Township decision and was free to interpret the CBA’s leave provisions differently.
It remains to be seen whether the District will seek the Pennsylvania Supreme Court’s review of this decision and, if so, whether that Court would agree to hear the case. It is, however, instructive to municipal employers that the Towamencin Township decision did not wipe the slate clean as far as FMLA leave designation language in a CBA and that employers must pay attention to their agreement’s language and the potential that an arbitrator could interpret leave provisions in a manner that is not consistent with what the USDOL’s guidelines say regarding designation of FMLA leave.
Takeaways:
• The Commonwealth Court has ruled that an arbitrator is not bound by USDOL guidelines regarding designation of FMLA leave and may rely on inconsistent leave language in a CBA that would limit an employer’s ability to designate leave as FMLA and may allow an employee to delay utilization of FMLA leave.
• The Court has effectively limited its prior non-precedential decision in the Towamencin Township case that had indicated that an employer must designate eligible FMLA leave consistently with the USDOL’s guidelines.
Bottom line:
Municipal employers need to be aware of the leave language in their collective bargaining agreements that may be inconsistent with USDOL guidance regarding designation of FMLA leave because of the potential that unions could enforce that language through the grievance process. The attorneys at Campbell Durrant, P.C. are available to advise you regarding FMLA leave questions you may have.
