Accrued Vacation Pay instead of FMLA

EvaM · October 2001

If an employee files a request to use their accrued vacation paid time off to cover their maternity leave, but refuses to sign a FMLA request for leave can we force this time as FMLA? The employee does not wish to sign the form which agrees that benefits will not accrue during the time off and that the employer may request that they repay medical insurance premiums in the event that they do not return, since these and other stipulations would not apply when an employee simply takes their earned vacation time with pay.

If the vaction time is saved by the employee to use for a planned medical reason, should we in essence penalize the employee?

Rockie · October 2001

This really depends on your company policy. Most companies require employees to use their PTO in conjunction with the FMLA. That is to say, employees uses all PTO and then takes the balance of the 12 weeks (or whatever they need) as unpaid time. This is all counted towards the 12 weeks. In this way, an employee who has say, six weeks of leave cannot "save" this leave, take 12 weeks of unpaid time and then come back and ask for two weeks vacation.

Other companies will allow employees to "bank" their PTO and take the entire 12 weeks as unpaid leave and not touch this PTO bank.

As I said, it depends upon the policy of your company. You should clearly designate this one way or the other so employees don't feel they can choose which way they want to go.

System · October 2001

It sounds like you have two issues here:

1.) Can you designate leave as FMLA against the employee's wishes? Yes, I'm pretty sure you can (though I could be wrong). Otherwise, an employee could take 12 weeks of maternity/vacation followed by another 12 weeks for a different FMLA reason, like a sick baby.

2.) Your no-benefits policy penalizes prudent employees who plan ahead. And it might violate the FMLA because it penalizes people who use PTO for FMLA compared with people who use PTO for non-FMLA reasons.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

dhnyct · October 2001

When we have someone on FMLA, the period of time for which they are paid any accrued PTO is still eligible for continuing benefit accrual. Any unpaid FMLA time does not accrue benefits.

As for any scheduled payroll deductions, we continue coverage throughout FMLA with the prior written understanding of repayment arrangements for any missed scheduled deductions.

Mikki H · October 2001

I was under the impression that when you are on an approved FMLA that you still accrued benefits the same as any active employee. I did not think that it matter whether you were on unpaid or paid FMLA. Or is it that you have a policy that states that even a regular active status employee does not accrue benefits under certain circumstances?

We have not designated any time off as different for purposes of accruing benefits. If you are full-time, you accrue benefits. There have been very few unpaid leave instances and in those cases, benefits continued to accrued during that time. It might be that we need to revisit this policy as we grow larger and have more instances of unpaid leave, but could that still be inviolation of FMLA, to designate unpaid leave as ineligble for accruing benefits?

Anita · October 2001

I agree that an individual on FMLA whether paid or not, must continue accruing benefits. My understanding is that when an individual is on FMLA they are treated as if they are working.

Catherine · October 2001

The first place to turn is to your company's FMLA policy. If you don't have one, you should consider writing one. There are certain elections that can be made under federal law, and if you don't have a policy on it, then it will be construed in whatever manner is most favorable to the employee. For instance, the calculation of the 12 month period can either be calendar, rolling, or specified, such as October 1 to September 31.

Assuming that you don't have a policy, yes, you can designate medical leave as FMLA. But if you haven't treated all employees that way, you will likely have serious problems. Medical insurance benefits should continue during FMLA leave, so it seems to me that the motivation for wanting to designate this employee's leave as FMLA is invalid.

We've recently made changes to our FMLA policy to address some of these issues. Let me know if I can help.

Gar · October 2001

You need a written policy, pronto. Here in NC:

1. We designate situations as FMLA events.
2. We require employees' accrued vacation and/or sick time to run simultaneously with FMLA time-off. It's not optional. The employee, therefore, is being paid. Since employees who are on vacation or out on sick time are being paid, they accrue sick days, vacation days and get credit for paid holidays.
3. If an employee has no accrued vacation or sick time during any part of the FMLA leave, he/she is in what we refer to as "no pay status." In no pay status, employees do not accrue vacation days or sick days. Furthermore, they do not get credit for paid holidays and no payments are made to the retirement system. Lastly, in no pay status, we bill employees for that part of the medical benefit premium that is ordinarilly deducted from the pay check. If the payment is more than 30 days late, they can be dropped from the plan though we usually give them another 30 days.

Ruskanen · November 2001

I have one doubt about this situation. If the employee doesn't want to designate leave as FMLA, they probably won't turn in the proper paperwork and documentation from their Physician. Therefore, how can you designate a leave as FMLA if you don't have the proper documentation? Then you would have to give any employee FMLA without requiring documentation.

Ruskanen · November 2001

Also, if an employee is using their Paid Time off for a medical reason, and not for poor attendance, why should you want to penalize that person? If they don't request FMLA, and they run out of Paid Time off and Sick days, then you would have an attendance issue on your hands. As long as you can prove that you offered FMLA and the employee refused, I'd say you are doing your job.

Gracie · November 2001

[font size="1" color="#FF0000"]LAST EDITED ON 11-28-01 AT 11:34AM (CST)[/font][p]I attempted to check some resources to FMLA and found these resources to be very useful.

[url]www.dol.gov[/url], click on Wages and click on FMLA. The compliance guide for employers is extremely useful.

The HRHero Executive Report on "FMLA leave: A Walk through Legal Labyrinth" by Anne Williams is excellent. You can check this out on their website.

You may want to call your local Wage and Hour Office to talk to someone who can offer you relevant advice as well.

Hope these help.

Accrued Vacation Pay instead of FMLA

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