FMLA Fairness Issue

jampc

We are not large enough at this time to be covered by FMLA, but maybe sometime, especially if the size of the workforce is reduced to 25. My philosophical question: Why would an employer have a policy of using sick leave concurrent with FMLA? Would this not be perhaps unfair to employees? Why not let them use their accrued sick and vacation time first until exhausted, then FMLA? Seems fairer to valued employees?

Don D

Here's why. FMLA was inacted by Congress as a means of giving a qualified employee the assurance that if he/she had to be off work for certain situations, then their job would still be there when they returned. It is solely a job protection statute to keep the employer from firing the employee who qualifies. FMLA has no 'interest', if you will, in whether or not an employer even has a sick leave or vacation program. FMLA, therefore, kicks in regardless of whether those other benefit programs exist.

Now, on the other side of the coin is the employer, and his business interests. The people who drew up FMLA decided that those employers who might have these other benefits, like sick and vacation leaves, could run these programs concurrently, if they chose to, to serve their business interests. The reason an employer might do that is to prevent 'stacking'. The law is suddenly requiring employers to let people off from work for up to 12 weeks for certain situations. But, they were not intending that the employer let that person off for those twelve weeks in addition to all these other sorts of leaves, only that they not be fired for having to be off for certain situations.

Stacking of leaves would be awfully unfair to the employer who is required to grant FMLA. It would allow the employee, in an example, to be off for twelve weeks of FMLA, followed by five weeks of vacation, followed by three weeks of sick leave, followed by nineteen weeks of worker's comp absence. That's 39 weeks.

Next you might suggest it is unfair for the employer to not have to pay people's wages during FMLA absences. At some point the business interest of the employer must kick in, and FMLA anticipates that.

Nrdgrrl

Well written Don D!

That is exactly why we do it, because the position must remain available when they return, and that's difficult if they are gone longer than 12 weeks. (Heck, it's hard to do for just the 12 weeks!)

NrdGrrl

jampc

Makes sense. And no I wouldn't expect the employer to pay for FMLA if the employee has exhausted their sick time. It would be treated like LWOP, which we are experiencing at this time with an employee, who by the way we made pay her own insurance. Thanks for the response Don. Can see where it makes sense.

mwild31

Don - you rock! That's one of the best summaries I've seen on this issue! Thanks