Disability payees don’t use up PTO according to FMLA regulations

One company’s challenge to the Family and Medical Leave Act falls short in court

Employees who are receiving disability benefits while on FMLA leave can’t be forced to use up their paid time off as part of the leave.

That reminder of the often-confusing FMLA regs comes to us courtesy of a federal appeals court in a recent Wisconsin case.

The employer in the case argued both that it didn’t violate FMLA regulations covering this issue, and that the regulation itself was off-base.

The outcome of the latter argument, had the court resolved it, would have been a very interesting one for employers. Unfortunately, the court used a procedural technicality to opt out of ruling whether the reg went against the Congressional intent of the FMLA.

What the court did rule is that under the regs as they stand, the employer was in the wrong.

What the FMLA regulations say

Here’s the point: As you know, you’re not obliged to pay people on FMLA leave. And if you want, you can require that they use up their paid leave – such as accrued vacation or sick time – while they’re on FMLA. (The employee can also choose to do this.)

When the employee is drawing disability benefits, however – from a plan sponsored by you or a third party like a union, or from workers comp – you can’t make them use up their accrued time off. That’s the effect of the FMLA regulations, which as of today still stands.

Cite: Repa v. Roadway Express, No. 06-2360, 7th Cir., 2/26/07.