FMLA - used sick days

dianec

Our company policy allows employees to have 10 paid sick days per year. We have an employee that has used most of her days since becoming pregnant. Can these days be subtracted from the 12 weeks as provided by the FMLA? Or must we give her the full 12 weeks after she departs?

Theresa Gegen TX

You probably will have to give her the full 12 weeks.

First issue: A company can have a policy that requires employees to use company sick leave and FMLA leave at the same time (but I suspect you don't have that policy because of your question).

Second issue: The DOL regulations do not allow an employer to retroactively designate leave as FMLA leave. That means that the employer's duty is to tell the employee that the absenses will be counted as FMLA at or before the time the absenses were taken. This issue is now before the US Supreme Court -- and it will either uphold or strike down the DOL regulations.

Third issue: Did the other absenses even qualify for FMLA (maybe intermittant), but they did qualify for sick leave under your policy.

The safest route to take is to give the employee the full 12 weeks, and review your policy to see if you want to change it, then anytime an employee takes medical leave that may qualify for FMLA, designate it as such (you can notify the employee that you are conditionally designating the leave as FMLA, until you get the medical documentation)

Good Luck!

Linda_CA

I agree with Theresa. You must give her the full 12 weeks. The fact that she use accrued sick time has not bearing on this unless you designated FMLA prior to her leave. In this situation these are two different issues.