Boards of education must negotiate over whether employees may be required to take accumulated paid leave as part of their leave taken under the Family and Medical Leave Act (FMLA), according to a recent ruling of New Jersey’s Appellate Division, Superior Court. This ruling affirmed a determination made by the Public Employment Relations Commission (PERC).

The matter of Lumberton Education Association vs. Lumberton Board of Education arose when the Lumberton Education Association filed an unfair labor practice charge against the board alleging that it violated its statutory obligation to negotiate by passing a policy that required employees to use paid leave concurrently with leave required under the FMLA. Under the district’s policy, paid leave would count toward the employee’s FMLA leave entitlement, thus precluding employees from “stacking” days of FMLA leave and personal/sick leave one after the other. The Education Association prevailed before PERC, and the board appealed. NJSBA filed an appellate brief as amicus curiae in support of the board’s position.

The Lumberton Board of Education maintained that the matter of whether employees must designate accrued paid leave for all or part of FMLA leave is a non-negotiable managerial prerogative under the FMLA provision that states that an employer “may require” the employee to substitute accrued paid vacation leave for FMLA leave.

The court rejected the board’s position, affirming the determination of PERC that the question of stacking leave is a mandatory topic of negotiations, not preempted by the FMLA. The court found that while the FMLA established a non-negotiable minimum 12-week leave entitlement in a 12-month period for eligible employees, the statute does not set a mandatory maximum standard and does not preclude negotiations over whether the school requires paid leave to be applied toward the annual FMLA leave.

The court found further that PERC’s ruling was supported by New Jersey statute and case law outlining the standards of negotiability of terms and conditions of employment.