Human Resource Blog

FMLA in Kansas

Is it mandatory to use vacation time up before filing for FMLA?

This is entirely a matter of company policy.

According to the U.S. Department of Labor, “Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA.”

They add, “The substitution of accrued sick or family leave is limited by the employer’s policies governing the use of such leave.” Meaning that the employer can set whatever policy they choose. They can require that paid leave be used before FMLA, that it be used and counted as FMLA, or they can leave that choice up to the employee.

This means that an employer can require workers to use some or all of their accrued paid leave – including vacation, sick and personal time – before going on FMLA. Or, employers can leave it up to the employee whether they wish to use their paid leave before going on FMLA or not.

In some cases, under FMLA, paid leave can even be substituted for part of the unpaid FMLA leave. This is entirely legal, as long as the employer informs the worker in writing, before the leave begins, that the paid time will be counted towards their 12 weeks total of FMLA.

An informal and unscientific survey shows that companies are split about 50/50 on this issue. About half of employers require that workers use all paid leave before going on FMLA, or as part of their FMLA. Other employers allow workers to retain their vacation and sick time.