FMLA -Accrued time off/merit increases

We do not have to comply with the FMLA due to the number of employees at each of our locations. However, we attempt to in order to maintain consistency and to treat employees fairly. I was reading something lately that made me question the way I had previously interpreted the law and wanted to make sure I understood what I read. I had understood that a person was basically to be "made whole" upon returning. (I understand the original or equavalent job, equivalent pay, insurance benefits, can't count against employee under "no fault" attendance, etc.)
Under the "restoring the employee's benefits and other terms and conditions of employment, we had been applying the understanding that employee's accrued time off and/or merit review could be affected if their absence lasted longer than the 12 weeks (thinking that they had to be provided this accrued time off or merit dollars when they were out up to the 12 weeks FMLA leave.) Then, when I read further, it says that the employee cannot result in the loss of any employment benefits that they were entitled to before FMLA leave. Does this mean that employees on FMLA leave just need to be made whole based on what they had at the time they left or must we also include what they should have gotten during the 12 weeks they were out as well? (Are we being more libral than necessary?) Just confused on this issue and the way it is worded. I hope I have made some sense.


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  • I'm not entirely certain that I understand your question - but I'll answer as I understand it...

    I answer your question by asking "what does your policy say?" Our employment attorney "blessed" our policy that basically says that our PTO benefits accrue based upon the number of hours worked, and that because employees aren't working while out on FMLA, they are not entitled to accrue PTO. On the other hand, if our policy said that employees earns "x" amount of PTO each week (or per pay period or per month, whatever), then they would have to be given their PTO because it isn't directly tied to working - it's just a benefit that employees receive.

    For employees working in positions where they would have a day off with pay for a holiday, and they are on an FMLA leave during that holiday, we do pay them the holiday pay - because that is a benefit they would have received had they been at work.

    On a slightly different note - if you are not subject to the FMLA, I wouldn't apply the FMLA policy to your employees. Instead, write a personal leave policy that mirrors the FMLA, but with the granting of the leave being contingent upon your ability to accommodate the leave (after evaluating business needs, department staffing needs, any other legal needs, etc.)and perhaps not guarenteeing a return to the same job/pay/benefits/etc. This will still allow you to be a good employer, offering a leave benefit largely the same as larger employers, but allowing you the flexibility to deny a leave, replace someone out on leave, or whatever, if you need to, without having your hands tied.

    Just my opinion...
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