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Feb19

Using Paid Leave for FMLA

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We have an employee who needs time off to care for a spouse having surgery. He wants time off while the spouse is in the hospital (3 days) and then will be required to care for her at home 3-5 days while she is restricted to bed. He does not want to use his paid leave, as he himself is not ill. Our annual leave and paid sick leave is lumped together (earned monthly) and there is nothing in our handbook that states how much of that paid leave is annual vs. sick. In this situation, can we make him take paid leave first and then go into leave without pay?

Yes, you can require that the employee us paid leave first — and you can count that paid leave as a portion of his FMLA. Under new FMLA regulations implemented in January 2009, an employee may use paid time off while on FMLA. However, the employer may also require that the employee use paid time off as a portion of FMLA — and many employers do. That is becaue it is a way to control and reduce the total amount of leave an employee can take per year.

Suppose John has 4 weeks of PTO accumulated. If you do not require him to use it while on FMLA, he could concieveably take 12 weeks of unpaid FMLA, return to work and then take an additional 4 weeks of PTO later in the year. To prevent this, many employers have the policy that employees must use all paid leave while on FMLA, before using unpaid leave. This policy is lawful as long as it is applied fairly to all employees.

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This entry was posted on Thursday, February 19th, 2009 at 7:41 am and is filed under
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8 Responses to “Using Paid Leave for FMLA”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update noon edition Says:
    February 20th, 2009 at 11:00 am

    […] » Using Paid Leave for FMLA Human Resource Blog By Caitlin Yes, you can require that the employee us paid leave first — and you can count that paid leave as a portion of his FMLA. Under new FMLA regulations implemented in January 2009, an employee may use paid time off while on FMLA. … Human Resource Blog - http://www.humanresourceblog.com/ […]

  2. Gary Says:
    July 22nd, 2009 at 3:45 pm

    In the situation as described, if the employee has separate pools for vacation and sick time. Can the employer require the employee to use his/her vacation time before using his accrued sick time. In other words can the employer require the employee a specific accrued time under FMLA

  3. Caitlin Says:
    July 22nd, 2009 at 3:55 pm

    Hi Gary! Yes, it has always been the case that the employer can require an employee to use any accrued paid vacation before going on FMLA, or as the first portion of FMLA. Many companies do so. Many employees want to take 12 weeks of unpaid FMLA and still have 2 or 3 weeks of paid vacation to use later in the year — but there is no law that the employer must permit this. The FMLA was never intended to give an employee more than 12 weeks off per year. So the employee is not necessarily entitled to 12 weeks of FMLA plus 2 or 3 weeks of vacation during the year.
    Some states have different laws. HTH, and thanks for reading the blogs!~ Caitlin

  4. Gary Says:
    July 22nd, 2009 at 4:26 pm

    Thanks Catilin, your response, and quick, was much appreciated. This sounds as if it may become a contractual argument when it comes time to hammer out a new collective bargaining agreement.

  5. Caitlin Says:
    July 22nd, 2009 at 8:52 pm

    Hi Gary! That sounds like an excellent idea!~ Caitlin

  6. sharon karns Says:
    October 30th, 2009 at 10:58 am

    Thank you Caitlin - very helpful!!

  7. Deb Says:
    April 20th, 2010 at 1:52 pm

    If fmla and disability run concurrent to each other is the employee entitled to fmla benefits…earned hours for vacation and absence points? Our company requires 1900 hrs to earn vacation and absence points drop off for perfect attendance..Employees on fmla are given all hours not worked do to fmla and point fall off for perfect month even if missed for fmla.Employees on disability/ fmla these benefits aren”t given to employees

  8. Caitlin Says:
    April 20th, 2010 at 8:16 pm

    Hi Deb! Please post a question for a complete answer. Our space in comments is too limited to address this issue. Thanks~ Caitlin

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