Human Resource Blog

FMLA/Disability and vacation time

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I have an employee who is about to take maternity leave. She has saved 3 weeks of vacation and also paid for [major health insurance co.] short term disability coverage.

Does she need to exhaust her vacation first before a) collecting disability and b) being considered on FMLA?

The answer to question A is: It depends. The insurance policy itself will specify whether the employee is eligible to collect benefits while on vacation. Most do not permit this.

The answer to question B is: No. Under 2008 FMLA regulations, employees are permitted to use their paid vacation time while on FMLA. Or to put it another way, if an employee uses vacation time for a type of leave that qualify as FMLA, the employer can count it as FMLA leave. In order to do so, however, the employer must inform the worker in writing when the leave begins, that it is being counted as FMLA. To put it another way, the employee is entitled to a total of 12 weeks off including vacation and FMLA — she is not legally entitled to 12 weeks of FMLA plus 3 weeks of vacation. Although some employers would permit the employee to take 15 weeks off, they are not legally obligated to.