Paid Time Off and FMLA: Guidelines for employers

by on January 14, 2010 · 32 Comments POSTED IN: HR Info Center

Confused about how to use accrued paid leave? Here’s some help

As you know, FMLA guidelines require covered employers to provide eligible employees up to 12 weeks of unpaid leave for medical emergencies, family health crises, or the birth or adoption of a child.

But what if an FMLA-eligible employee has accrued paid leave available – vacation days, sick days or personal days, for example? Here’s a Q&A to help you wend your way through FMLA regulatory thickets:

How do accrued vacation days work with the FMLA guidelines for unpaid leave?

FMLA guidelines allow employers to require employees to use up paid leave first, so that the paid and unpaid leave run concurrently.

Example: If an eligible worker with one week of accrued paid vacation time requests FMLA leave, the employer would pay for one week of his leave.

Who decides whether an employee will use accrued paid vacation days?

Either employer or employee. The employer may require it or the worker may elect to use accrued vacation days for all or part of the 12-week leave.

A lot of firms choose to make this a requirement because it minimizes employees’ time away from the job.

For example, say you don’t make it a requirement, and a worker with two weeks of accrued paid vacation requests 12 weeks of FMLA leave.

Upon his return from leave he will still have two weeks of paid vacation time owed to him.

But if you make it a requirement, upon his return, he will have been paid for two of his 12 weeks of leave and he’ll have no remaining paid vacation days available.

When may employees decide to use accrued vacation or personal days during FMLA leave?

According to FMLA guidelines, accrued vacation or personal days may be used at any time during the FMLA leave. Employers may not restrict how this time is used.

According to FMLA guidelines, may employees use paid sick leave during FMLA leave?

Yes, depending on your sick-day policy.

If your policy allows employees to apply paid sick days only for their own illnesses, then they may not use their paid sick days to care for someone else while on FMLA leave. In that case, those days would be regular unpaid FMLA leave.

What do FMLA guidelines say about employees on paid leave covered by workers’ comp or short-term disability?

FMLA provisions that allow for the substitution of paid leave do not apply if a worker is receiving compensation through such a plan, even if it’s to make up the difference between what workers comp or STD pays and the worker’s regular pay.

Under FMLA guidelines, however, employers can and should count this paid leave against the employee’s 12-week entitlement.

What do FMLA guidelines say about an employer’s obligations to notify workers about the use of paid time off during FMLA leave?

If you provide workers an employee handbook with your firm’s policies, you must include your paid time off/FMLA guidelines in it.

And when an employee requests FMLA leave, you must provide him a separate, written notice of the policy.

If you fail to provide notice, the employee may be entitled to 12 weeks of FMLA leave plus any eligible paid time off accrued.

  • Misty

    Can I use my extended leave bank of hours towards the 12 weeks?

  • Mel Craft

    Does FMLA 12 weeks run January-December of each year? If an employee was off in July the previous year are they entitled to 12 week for the next year?

    • Yabo

      LEAVE ENTITLEMENT
      A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period

  • Anonymous

    I am a 5 day a week employee, M-F. My employer is counting Sat & Sun toward my 90 day leave. So my Fmla time is used faster. I am not an abuser. Does 12 weeks define Sun through Sat or the actual days the employee is scheduled for.

  • Anonymous

    Can an employer use FMLA time off against the employee during evaluation?

  • CB

    Can someone clarify this senario: If an employee who is on intermittent FMLA wants to make up the time for pay purposes within the same week, does the time then count against their FMLA allottment?

    • rliblogs

      Thanks for your comment. We can't respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • Noreen

    I am currently on FMLA leave. My employer paid me for 1 week vacation and 2 personal and 5 sick days when I advised hem I needed to go out of work due to illness . When does the 12 week period for FMLA begin?

  • mazz

    If my wife has a baby and I take F.M.L.A am I allowed to go about my “normal” everyday buisness. Such as landscaping part time ect.? And If I do can I get disciplined by my work?

    • rliblogs

      Thanks for your comment. We can't respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

      Michael Boyette
      Executive Editor
      Rapid Learning Institute
      PO Box A
      Morton, PA 19070

      mboyette@rapidlearninginstitute.com
      484-479-2715

  • sandra rodriguez

    I TOOK MY FMLA LEAVE IN 12/09 AND RETURNED BACK TO WORK IN 2/10 , DOES THIS MEAN THAT I WOULD NOT BE ELIGIBLE TO TAKE ANOTHER LEAVE TILL THE END OF 2010?

    • rliblogs

      Thanks for your comment. We can't respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • sandra rodriguez

    I TOOK MY FMLA LEAVE IN 12/09 AND RETURNED BACK TO WORK IN 2/10 , DOES THIS MEAN THAT I WOULD NOT BE ELIGIBLE TO TAKE ANOTHER LEAVE TILL THE END OF 2010?

  • Anonymous

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

  • El2823

    I have been out of work for 8 months and on short term and long term disability, and I was paid all my sick and vacation time during this period. And I was ready to go back to work part time but the employer did not hold my position and did not offer me another position and never explain to me about the FMLA instead their answer to me was they have no job available and cannot guarantee me a job in the future

  • Audrey Endres

    can employer make you take vacation for eight hours when you have worked for seven hours and have to leave and ask for one hour of fmla to care for a handicap child.

  • Anonymous

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

  • Laverna2

    Is it legal for supervisor to notify HR and tell them you have a serious illness,
    then HR sends out FMLA forms for employee to sign and get doctor to sign.
    Employee did not ask for FMLA. Is this legal?
    Lauren

  • justwondering…

    Can an employer REQUIRE you to fill out FMLA leave for short term (less than 2 weeks) time off due to injury when you have plenty of sick and vacation leave accured?

  • Joanne Jackson

    Can an employer take back accrued vacation time if an employee used FMLA and Union contract says a certain amount of hours in previous years must be satisfied?

  • Damarieles

    If an employee is on FMLA, can they use say 20 hours of vacation, annual or sick leave per pay period to simply cover the costs of their benefits if they are considered a full time employee who typically works 80 hours per pay period. 

  • Aghrawriter

    My employer has just told our office that as of January 1st 2012, if we have an appointment no matter how long that appointment takes, we HAVE to use 4 hours of personal time. So if my appointment is only 30 minutes, i have no choice but to basically waste 3 1/2 hours of my personal time.  I have Lupus & Fibromyalgia, so as you can imagine i have quite a few Dr’s appts., this basically means that i will have to cancel medical appointments as i will have no PT.

    • Choppedsuzie

      Your employer cannot require you be off work more then medically required.  They can however dictate how their PTO policies are implemented.  If they only pay out in increments of 4 hours, and require that all paid time be used before unpaid time is granted that is thier policy regardless of FMLA status.  Once your PTO time is used you would still be eligible for unpaid time away under FMLA for the periods of certified medically required absences.  You should be scheduling these appointments outside of work time when possible – but you aren’t prevented from taking the time, they just aren’t going to doll out your PTO on your terms.  You are actually being paid in advance since you will be logging more then your schedule hours.  Just because they charge you 4 hours of your paid time doesn’t mean you can’t be at work after the appointment.

  • Cabinjack

    I am about to have major surgery and expect to apply for about 10 weeks FMLA.  I have 4 weeks of vacation and about 8 weeks of earned sick time banked with my employer.  Will my employer make me burn off my vacation first during FMLA leave, or can I request I use up all my banked sick time before using any vacation time?

  • Cmoralesnyc

    If me medical is from my employer do I lose it with FMLA ?

  • marc

    do i by law have to take fmla leave if i have vac . and sick leave on the books

  • jeff

    If you work 8 hours a day, 40 hours a week taking 8 hours of vacation a day is ok. But what if they are working overtime of 10 hours a day can they take 10 hours of vacation instead of 8 ? Also we are union and are contract states that anything over 8 hours is time and a half , so if they were able to , wouldn’.t they have to pay 2 hours of it at time and a half .

  • Bobbiesibley66

    i was wondering can an employer use your personal time without your permission? for example if im late or call in or have an appt and have to leave early?

  • Jangela301

    i had to have emergency surgery and took fmla leave, at the time i had only 12 hours of vacation time left and that was taken from me, which i understand, but after my return to work my employer (after 5 mos) proceeded to take my 3 weeks of my vacation and my vacation pay saying i did not work enough hours after returning to cover the 12 weeks i had used for my leave the prior year.

  • Mathomas

    If I have an employee that is out on FMLA and a holiday falls within those 12 weeks by law do I have to pay the holiday hours?   

  • D L Wilson

    my employer Chrysler was purchased by TD Bank. I am totally disabled and will be terminated on 4-1-13. according to TD bank.  TD bank says in a letter to me that as far as my medical,dental,life ins,if i am still disabled after the year is up (4-1-12 until 4-1-13,whichever is sooner) or my “time For “time expires will have to go on cobra or medicare. However I am still listed currently as  an active employee,why then do they have too terminate me? with chrysler as long as i am disabled i would have received my benefits indefinitely. The have also taken away my accumulated days of service. I started employment in 6/1/01/and became disabled in april  07. I should now have 12 years with the company instead of 6.  what can I do? also get ssi disability,can I also receive unemployment from them since they are terminated me??

  • rliblogs

    Thanks for your comment. We can’t respond to questions about specific situations or provide legal advice, but we invite other readers to post comments or responses to this question. We encourage you to seek guidance from your HR department or, for legal questions, consult an attorney.

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