does this leave qualify for FMLA protection

EE requests leave to drive non-driving disabled spouse to out of town doctor appointment. This appt is a follow up pursuant to a malpractice suit that caused the disability of the spouse in 2001. The doctor is a disability specialist. Purpose is to determine extent of continued disability. The second appointment does not include a physical exam(other than general observation).

According to our personnel policy, sick leave is taken only for EE's own illness. Illness of family members that require the EE to be absent from work would fall under Emergency Leave, which is charged to sick leave accrual, and is limited to eight days a year.
Top management decided that the spouse's condition wasn't emergent enough to qualify this leave request for Emergency Leave, and since the EE wasn't sick, management allowed use of accrued vacation.

The contention: sick leave had been granted by previous supervisors for this EE to transport spouse to medical examinations and the initial appointment with the disability specialist.

EE was verbally reprimanded 2 months ago regarding excessive absences, so EE wants to protect this leave, as it relates to a serious health condition for which FMLA protection has been given over the past three years. 1) does this leave qualify for FMLA protection, 2) if so, can FMLA apply to vacation leave as well as sick leave, 3) should personnel policy be changed to reflect FMLA definition of protected leave?

Thanks for any thoughts/input.
-Abby (not such a newbie any more)


  • 3 Comments sorted by Votes Date Added
  • Notwithstanding your written policy, which becomes irrelevant in the head-butting contest with FMLA regulations, this does indeed qualify. If the paperwork has been submitted and the medical certification substantiates the need for the employee to accompany or transport the ill spouse to treatment or examinations, it's FMLA, pure and simple.

    The existence of a malpractice suit, the reason for the disabling condition, the specialty of the doctor, the specific purpose of the medical appointment and what previous supervisors have done....all of those are totally irrelevant.

    And, the company policy you have is neutered by the FML Act.

    The answer to your question about whether or not you can force vacation leave is up to the company. If you want to have a policy doing that, it's up to the company to formulate and publish that policy, unless your state's law prohibits it.
  • So the category of the paid time off benefit does not interfere with the implementation of FMLA rights, correct? Meaning, it doesn't matter to FMLA regulators whether the employee was paid or not, so it follows that if the employee did get paid, the time off isn't automatically disallowed from FMLA protection just because the boss calls it "vacation."

  • Your records must properly reflect that the time was counted as FML. It is irrelevant to the government whether or not they were paid from their vacation bank during that time. The only way that would be relevant would be if a complaint were made and an investigator came in and found that you 'made' this one take vacation and 'wouldn't let' others. They only look for consistency and adherance to regulations. If your state law is also silent on whether or not it is paid leave, you are at liberty to do as you please. It IS recommended, though, that your policy be written and consistently followed.

    As to the 'boss' referring to it as 'vacation', I wouldn't suggest he ought to say 'Mary is on vacation'. Although I don't really know why that bothers me, it's disingenous.

    The reasons to apply the two leaves concurrently are two-fold: It perhaps allows the employee to draw pay while on FMLA and, most importantly for the company, it forces them to burn vacation while on FMLA so that they don't 'stack' leaves.
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