FMLA, Sick, and Vacation leave

HR Ladies · May 2001

Our organization is reviewing our policy on the use of FMLA, sick, and vacation leave. Currently, we allow employees to request unpaid FMLA which runs concurrently with paid sick and vacation leave. We are looking for statistics, pros and cons, paperwork issues, and any other major issues or concerns regarding the two following statements.

Company requires the the employee to use unpaid FMLA, sick, and vacation leave concurrently.

Company allows the employee to use sick and vacation leave before applying for 12 weeks of unpaid FMLA.

Margaret Morford · May 2001

Most employers require in their FMLA policy that employees run out their sick and vacation banks concurrent with using FMLA. Think of it as two separate issues. FMLA gives them 12 weeks of leave and the issue of how much of that is paid is determined by your company policy. For example, if an employee requests a full 12 weeks of FMLA and has 4 weeks of vacation, sick and/or personal time, he/she gets the 12 weeks FMLA leave, 4 of which are paid and 8 of which are unpaid. He/she returns from 12 weeks of leave with a zero balance in his/her bank. This prevents the employee from taking 12 weeks of FMLA unpaid and then saying now I want my 4 weeks of vacation, thereby getting a 4 month leave of absence. Most employers certify FMLA as soon as they become aware of the qualifying circumstances. Some employees would rather use their sick time first and do not want to be qualified. Employers certify the FMLA anyway so that they do not have a situation where the employee gets a four month leave of absence. If you have any questions about my answer, do not hestitate to contact me at 615-371-8200.

Margaret Morford

Gary Jiles AR · May 2001

We always suggest that you run your vacation, sick leave, etc., time concurrently with the FMLA in order to resolve any doubts that employees are not entitled to more than 12 weeks time. You should also remember that you can force the employee to use paid leave time concurrently with the FMLA even if the employee prefers not to use the paid time.

As for using paid time before going on FMLA, this is not a problem. However, the employee can later come back and argue that the he or she has 12 weeks of FMLA time remaining to be used which results in a lengthier time off. Courts have been holding that even if an employer does not designate time off as FMLA, the employee who receives time off for a serious health condition which has not been designated as FMLA is not entitled to more than 12 weeks leave.

As for statistics, I am unaware of any. My clients run the FMLA currently with all other leaves. Most of the clients require the employee to use paid leave concurrently with FMLA leave.

I hope the information has been helpful.

Gary Jiles
Editor
Arkansas Employment Law Letter
Jack, Lyon & Jones, P.A.
501.375.1122
[email]gdj@jlj.com[/email]

(BJ) · May 2001

The Law indicates that FMLA leaves may be paid or unpaid. You are simply allowing a paid leave when you allow vacation, FMLA, and sick to run concurrently. A lot of additional paper work. You can establish a policy which permits both paid and unpaid. Unpaid occurs after the paid has been exhausted, provided it fall s within the time limits (12 weeks per year) of the law.

WO · May 2001

I agree with all the responses. One note of caution, if the employee is using sick leave for the absence be sure it is eligible under your policy. Not every instance of FMLA would indicate 12 weeks of sick leave eligibility.

Mikki H · May 2001

Our policy states that "any accrued PTO is required to be taken concurrently" with FMLA. It further states and any "other PTO" cannot be used to extend the FMLA maximum.

At January 1, we put in everyone's PTO bank the total amount that will be earned for the whole year. In a regular year, they are allowed to take PTO before it is actually earned (this has only gotten us in trouble once). But, when they go out on FMLA, they must take only the amount that is actually earned through that date (saving us in case they do not decide to return). Our statement about "other" PTO refers to the unearned, but available, time off. After they return from FMLA, this "other" time can be used in accordance with the normal guidelines.

CuriousG · May 2001

>Our policy states that "any accrued PTO is required to be taken
>concurrently" with FMLA. It further states and any "other PTO" cannot
>be used to extend the FMLA maximum.
>
>At January 1, we put in everyone's PTO bank the total amount that will
>be earned for the whole year. In a regular year, they are allowed to
>take PTO before it is actually earned (this has only gotten us in
>trouble once). But, when they go out on FMLA, they must take only the
>amount that is actually earned through that date (saving us in case
>they do not decide to return). Our statement about "other" PTO refers
>to the unearned, but available, time off. After they return from
>FMLA, this "other" time can be used in accordance with the normal
>guidelines.

Mikki-Have you run this practice by a good employment law counsel? As I understand the FMLA you must extend to the employee the same benefits you would an employee who is not on FMLA leave. This would mean restricting the amount of PTO available because it is an FMLA leave might not be legitimate.

Mikki H · May 2001

We are not restricting the PTO that can be taken, but we are defining the amount that is mandatory to be taken concurrently. It is still the employee's option to take all the PTO available during the leave.

In other words, the employee must take PTO concurrently for time that is actually acrrued at the time the leave begins. They always have the option of scheduling MORE time to run concurrently, but they cannot take LESS time.

I don't think that is limiting since all employees can schedule their PTO at anytime (accrued or future accrued time).

FMLA, Sick, and Vacation leave

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