PTO accrual during FMLA

Squishypig · August 2002

We have an employee who was on FMLA leave for the birth of her daughter. She returned on 1/1/02 at the end of her leave and exhausted all of her paid time off. Her management anniversary date is 9/16/02 and she is under the impression that she will receive all of the personal, vacation and sicks days for one year's service even though she has been back for only 9 months.

Am I correct to assume that she does not have to get credit for service when she was on FMLA leave? Technically that she would not earn her paid time off until the one year anniversary of her return?

I am willing to compromise and prorate her PTO for 9 months service which will give her some days and put her back at her original anniversary date for calulating PTO.

Johnette

Don D · August 2002

It's my understanding that the ee cannot suffer the loss of ANY benefit that she would have otherwise realized had it not been for the FMLA event. Does your policy specifically state that absent ee's will not have such periods of time counted toward the accrual of benefits? If the policy clearly excludes such time periods and counts those times as "non-service", then it applies to someone on FMLA as well. If not, you can't carve out that period of time in her calculations simply because she was out on FMLA. x:-)

Squishypig · August 2002

[font size="1" color="#FF0000"]LAST EDITED ON 08-08-02 AT 10:45AM (CST)[/font][p]Well we do not have a policy that specifies that if you are any type of leave, that it will not count for service. I was basing my decision on the following found in the FMLA:

(2) An employee may, but is not entitled to, accrue any additional
benefits or seniority during unpaid FMLA leave. Benefits accrued at the
time leave began, however, (e.g., paid vacation, sick or personal leave
to the extent not substituted for FMLA leave) must be available to an
employee upon return from leave.

Am I interpreting this correctly?

Johnette (who does not like interpreting the FMLA)

Don D · August 2002

An employee may, but is not entitled to, accrue any additional
>benefits or seniority during....

I think the key in your quote is the word 'additional'. Throughout the Act there is language advising that FMLA is not intended to result in the ee gaining MORE than he would have otherwise and not receiving additional status, protection or benefits beyond that which he would have otherwise gotten (except job protection). Seems to me that if you have no policy which addresses periods of absence and how they relate to accumulation of benefits or how they might affect such things as tenure, raises, reviews, personal days, vacation, etc, then it will boil down to a serious analysis of how you have in the past treated ANY such absences, specifically NON-FMLA periods of absence. You don't want to be found applying this only to FMLA folks. The 'retaliation' red flag will immediately shoot up the pole. If you find that 'Bubba' was gone on an extended vacation to Paris 5 years ago and his time accumulation went right on and that 'Chaquita', who worked directly for the president, was allowed to miss almost 3 months that time her sister came to visit and her benefits were not affected, you know where that will take you.

moneyman · August 2002

I tend to agree with Don D. I think that the FMLA wording gives the guidelines of what is allowable, but your policy will fine tune it. And, in absence of a policy, your prior actions should be your guidelines. We have a policy that specifically states that ANY UNPAID LEAVE does not count towards accrual of Paid Time Off. This includes unpaid time under FMLA or other leave of absences.

I think it is best that you have a policy that addresses this issue. Just as the FMLA wording says that your accrued paid leave MAY run concurrent with your FMLA, without a policy, your employees may not know how you will treat it. And, putting in place a policy can help prevent treating employees differently over time. Our policy also states that ALL ACCRUED time off will be used concurrently with FMLA so that employees know that they can not tack on 12 weeks on top of any time accrued. I think it just makes it clearer on both sides to have a policy in this instance.

Brad Forrister · August 2002

An employee doesn't generally accrue sick or vacation days during the FMLA leave. I don't think that general rule would change just because you (apparently) have a policy of awarding these days on anniversary dates, rather than accruing them through the year. I think you'd be safe to prorate the leave time.

But it might be clearer to the employee if your policy stated that leave time, while awarded at anniversary dates, accrues based on the number of hours actually worked during the year.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Don D · August 2002

I have found that vacation typically is awarded based on years of employment such as; after one year, after two, when the ee reaches five and after seven and so on. Government entities generally have accruals based on days or months of service and the accumulation might appear to be earned as one goes along. For all the companies that 'gift' vacation to the ee based on years of service, it would be questionable to up and prorate it in the event of FMLA. Caution is certainly the buzz word of the day when it comes to anything connected to FMLA. We're having Miss Hall (JD), Federal Investigator, USDOL in here again this afternoon. All it takes is a phone call to their office and the mention of FMLA to get them on your tail, period. No complaint form, no official charge, just the phone call. The hassle-progression after termination used to be Unemployment Office, then EEOC. Now its Unemployment Office, EEOC, FMLA (Wage Hour), then ADA. A 'one stop shop' form for all charges would be a good idea.

PTO accrual during FMLA

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