FMLA: use of PTO required?

Ki

A couple of our supervisors have treated two employees' FMLA maternity leaves differently in the past year. One allowed an employee to use the 12 weeks unpaid (on ST disability part of the time of course), and then take a week of vacation after the 12 weeks.

The other supervisor told her employee that she could not use unpaid time during the 12 weeks (after the ST disability expired) until after she had exhausted her vacation, sick, and personal time. The supervisor told the employee that if she wanted time off later in the year for a summer vacation, she could take unpaid time then. The supervisor feared that the employee could take the 12 weeks, then be off for 4 more weeks with vacation time, and the supervisor can't afford to lose her for that long. I told her she didn't have to approve the vacation time after the 12 weeks, but she still was not happy that the employee would still have so much PTO available to use during the next few months. The employee is now upset because she knows what another supervisor allowed an employee in the same situation to do. Our police simply states that "FMLA leave is unpaid. However, available PTO my be taken in conjunction with FMLA leave."

I'm interested in hearing (or preferably seeing policies) that you all have regarding the required use of PTO during FMLA. The law says "subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave." So as I understand it, the employer can make the call.

joannie

"So as I understand it, the employer can make the call."

Mine too, as long as your policy states what is required. Our policy states except in the case of leave due to a workers comp injury, paid leave time will be required to run concurrently with FMLA.

Hope this helps.

Dutch2

I logged onto HRHero and quickly found the following: "Employees must use any accumulated sick, vacation time, or personal time (or PTO), if applicable, to the extent it is available during this leave period unless such leave is covered under workers’ compensation, in which case the employee may use accumulated leave time only for the purpose of satisfying any waiting period. [NOTE: The employer has the option of requiring the employee to use his/her vacation time, sick time, and personal time (or PTO) if the employer wishes. I recommend that you require it be used to prevent the employee from taking 12 weeks of FMLA and then extending that leave by taking additional vacation time. However, check your state laws to make sure there is no prohibition against requiring this use. Some state-run temporary disability programs prohibit such a provision.] Absences in excess of these accumulated days will be treated as leave without pay. Upon return from leave, the employee will be restored to his/her original or an equivalent position. Key employees may not be eligible for reinstatement. [NOTE: While this exists as an exception to the Act, I do not recommend using it without significant legal advice. Since the Act’s inception, I have never spoken with any employer that has ever invoked this provision because of the high standard of proof required. However, if you anticipate ever invoking it, you should include this language in your policy and designate up front the positions and/or individuals you consider to be “key employees.” Otherwise, the employee may be eligible for leave under a breach of contract theory.] If an employee fails to return at the end of FMLA, the employee will be considered to have voluntarily resigned his/her position with the organization."

We require pay time off to be used. I recommend that you make a decision that your company does or does not and be consistent with the program.
Good luck.

FunHRBanker

You need to check with your state regs also. We run state FMLA concurrently with federal FMLA so after the first 2 weeks off for their own serious health condition or for that of a seriously ill family member, we force the use of vacation and personal time (not sick); 6 weeks for birth of a child. Wisconsin state law says that we cannot force the use of time during their state leave. Federal says we can.

You MUST be consistent. Talk to your supervisors. This could open a huge can of worms if they are implementing this differently. If you don't force the use of time, an employee could take 12 weeks unpaid FMLA then take their vacation time after that.