Exhausting accrued personal or vacation time before FMLA

guardian · December 2002

My question is whether an employer can mandate an employee with a valid FMLA reason for the leave, to first exhaust paid vacation and personal leave before computing the FMLA. We have a policy that pays a certain amount back to an employee who does not use any of the allotted amount of personal time on an annual basis.

sanua · December 2002

You can require an employee to use any accrued vacation, personal leave or sick leave for FMLA. FMLA is required leave (if they meet the requirements) but is not paid. We require employees to use their accrued leave during the FMLA leave -- so it runs concurrent. You wouldn't want to have employees use their accrued leave before FMLA kicked in (if it's a qualifying event) and then still have 12 weeks of FMLA to still use.

HR in Okla · January 2003

I agree. Your policy should be in writing. That's the main thing, have a written policy and stick to it. I worked one place that required them to use vacation or sick leave first, but it makes a lot more sense to allow a TOTAL of 12 weeks than to give 12 weeks FMLA after they may have used several weeks vacation.

LindaS · January 2003

Under the federal FMLA you CAN require an employee to exhaust paid leave just be sure you have a written policy in place. The only caution I would throw is whether or not you have state FMLA regulations which are different from the federal. For example here in Wisconsin the state law regarding FMLA states that it is the EMPLOYEE'S choice of whether or not to use paid leave for FMLA so if a qualifying employee is out on FMLA leave as long as they are covered under the state law an employer CANNOT require them to use paid leave. Once the state law expires however, an employer can require them to use paid leave.

Good luck.

HR in Okla · January 2003

Good point, states do vary on it. No problem in OK with requiring they use it concurrently.

Balloonman · January 2003

I worked at a place that when my wife was expecting and was told "that if the baby is born on Tuesday you are expected to be back Wednesday morning." (It was a meat plant, and we were having a difficult time reaching an agreement for time off. Brand new plant start up, lots of tension.)
My companies policy was that you had to use vacation or any other paid leave at the beginning of your FMLA. Since they would not let me use my vacation, I called corporate HR, and received approval for 4 weeks FMLA leave in 30 minutes. The above quote angered the HR staff!
Once approved it was funny how local management became easier to work with. Only ended up taking one weeks paid leave.......... did not even have to use my vacation.
Remember those that are not abusing FMLA probably can't afford to take it without pay, so having them take paid leave helps them out. Also prevents a long FMLA leave followed by a 2 weeks paid vacation!
My $0.02 worth.
DJ The Balloonman

Exhausting accrued personal or vacation time before FMLA

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