paid leave on FMLA

juju

I was just reading the HR Hero "Tip of the Week" about FMLA. It says that if an employee requests leave to care for a healthy new child, they can NOT be required to use sick leave. Currently our policy states an employee must use all available benefit time, although in this situaiton, sick time cannot be used until all other time (vacation, personal, holiday) has been exhausted. If we are in the wrong, I would like to let my boss know. Can anyone point me to the specific reg where it states that? I was on the DOL website and found lots of good info but not specifically what I was looking for.

Thanks!

Rockie

I've never heard of anything like this being in the regs. Most companies do exactly as you do - require employees to use all paid leave time before going into a leave without pay status.

juju

I had never heard of it either until I read the Tip this morning. I knew that employers could require the use of paid time, but not that there were specific types of time that could and could not be used for different types of FMLA.

LindaS

Take a look at the this section:

29 CFR 825.207 - This section states that an employee can use FAMILY leave to care for a healthy newborn if the employer's policy regarding family leave allows for use for this reason.

It goes on to state that an employee is only allowed to use paid leave if the employer's uniformly applied policy would allow leave for this reason.

Basically it means that an employee cannot use paid leave that would be unavailable to them in absence of the FMLA situation.

Hope this helps.

deniseE

BUT I imagine that you could use sick leave for a woman that has given birth...generally doctors will not authorize a return to work for 6 weeks, up to 8 if complications occurred.

Yes, she is caring for a newborn, but she is also healing herself.

using sick leave for the first 6-8 weeks and any other available PTO for the remaining time may be a way to make this work for you.

System

I agree with LindaS, and I reworded the Tip of the Week to clarify:
[url]http://www.hrhero.com/headlines/040904/tip-fmla.shtml[/url]

I'm not a lawyer, but as I understand it, you have to apply your sick leave policies consistently for FMLA and non-FMLA conditions. For example, if you don't let employees use sick leave to care for a kid with a cold, then you can't force them to use sick leave for a kid with an FMLA illness.

In the same vein, you probably wouldn't let a male employee to use sick leave to care for his healthy 2-year-old, so you can't require him to use sick leave to care for his healthy 2-week-old.

The regulations are a bit confusing. In 29 CFR 825.207, you have to read (a) and (c) together.

Here are a couple of articles that talk about the caring-for-a-sick-kid scenario:

"Sick leave and the FMLA," Arizona Employment Law Letter, March 2004.

"FMLA: substitution of paid leave clarification," Oklahoma Employment Law Letter, April 2001.

Of course, things are different with PTO.

James Sokolowski
HRhero.com

stilldazed

Sounds like LindaS has your answer. We have two different types of paid time off--PTO & CTO. PTO is for all types of absence that would not otherwise be classified as company business. CTO is personal catastrophic time off and can only be used for an employee's on own personal medical-related absence beginning on the 4th day of the absence. In family medical FMLA issues, CTO is not available to the employee, even if the employee has accrued CTO time and has exhausted all PTO time. It's not available because the situation doesn't fit the criteria for using the CTO time.