“must comply” with those terms “except for any terms relating to the choice of leave.” This dependence of the state claim on the terms of the collective bargaining agreement means that the collective bargaining agreement has to be analyzed to see whether the employee is entitled to paid leave as in Firestone. If the flight attendant is entitled to leave under the collective bargaining agreement, she can use it to care for her son when he is ill. If not, not. The statute directs us to the collective bargaining agreement to determine whether the employee is entitled to any leave.
Under the three part test, “if the right exists solely as a result of the CBA, then the claim is preempted, and our analysis ends there.”[1]Since the statute creates no right to any kind of paid leave, and conditions its expansion of rights upon an employee entitlement under the collective bargaining agreement, “the analysis ends there.” The right to leave in this case is “substantially dependent on analysis of a collective-bargaining agreement.”[2]Therefore it is preempted.
The union and the state agency argue that noanalysis of the collective bargaining agreement is needed because of “the undisputed restrictions” the collective bargaining agreement places on use of prescheduled vacation leave. Because they do not dispute that Masserant was not entitled to use her vacation leave scheduled for December to care for her sick child in May, they argue, no analysis is necessary. They argue that because a mere “look to” the collective
