FMLA & Employee Resignation

CKKY

Daughter brought note from Dr on behalf of her father, an employee, requiring him to be off work for 5 days, beginning 9/10. He does qualify for FMLA but has not requested it. Manager received a letter from employee on 9/12 stating that he resigned effective in 2 weeks (9/26). FMLA policy requires use of accrued sick time prior to using unpaid time off. However, sick leave policy prohibits the use of sick time during the notice period after a resignation has been received.

Question: Since the employee has resigned, do we have to pay his sick leave under FMLA?

Joe HR

You as the employer should have designated the time against the individuals FMLA entitlement when you received the first note. It would be too late to go back and designate the time against the individuals entitlement now, but also under the Act, you are not required to pay the employee while they are off on FMLA leave. The law does permit an employee to elect, or the employer to require the employee, to use accrued paid leave time , such as vacation or sick leave, for some or all of the FMLA leave period. Paid leave may be counted against the 12-week entitlement.
Since it doesn't sound like you have designated the employee's time off as FMLA, I would suggest you review your sick leave policy to see whether you have to pay the individual or not.

Don D

Two issues: I think I would have sent the FMLA forms to him and advised him that I was placing him on that status conditionally and instructing him to get the forms back to me by a deadline.

The other issue about the sick leave pay; FMLA does not require you to grant a benefit greater than that which the employee would otherwise enjoy if not on FMLA. One of your policies requires a person on FMLA to exhaust his sick leave. Your other policy precludes the use of sick leave during a period of terminal notice. Even if you already did have him designated as being on FMLA, as soon as you got his notice, the policy would kick in that precludes the payment of sick leave during resignation notice. Since FMLA does not require anything in the way of sick leave pay, your own policies rule.

If you allowed this employee to exhaust his sick leave pay while on terminal notice, you would have a run on that same situation with others who resign in the future.