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Paid Time Off and FMLA in New York

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If an employee uses paid time off for a serious medical problem, such as sick time or short-term disability, can that be counted towards their 12 weeks of unpaid leave under FMLA in New York?

Depending on the state the employee is working in and on company policy, paid leave may be deducted from a worker’s 12 weeks of unpaid leave under the Family and Medical Leave Act, or FMLA.

The U.S. Department of Labor considers it entirely legal. Companies may set up policies that say workers must first use their paid leave, whether vacation, sick time, personal days, or short-term disability, if it is available, before using unpaid FMLA.

Paid time off may be counted against the FMLA time. But the employer must set up a policy, and must make the policy very clear to the worker at the beginning of the FMLA leave. Most companies find it best to do this in writing.

Five states mandate short-term disability leave. Those states are Hawaii, California, New Jersey, New York, and Rhode Island. In California, workers are allowed up to a full year of disability providing she or he has documentation from a doctor certifying inability to work. Rules vary from state to state.

How does the FMLA work?

Employees are legally entitled to a full 12 weeks of unpaid leave under certain conditions. It is allowable if the employee faces a grave illness, or must care for an immediate member of the family who is seriously ill. The time may also be used for recovery from childbirth. Workers also take the time to care for a newborn child, a new foster child, or a newly adopted child.

Under FMLA, the employee’s job is protected. This means that at the end of the leave, he or she must be returned to the same job or one with similar working conditions, benefits, and pay. But if the worker uses up all 12 weeks and takes more time off after that, the employer is under no obligation to reinstate. Some employers do, and some do not. But a company’s policy must be consistently applied to each worker. JH