Juggling employees' time off entitlements: When is it an FMLA violation?

by on January 14, 2010 · 9 Comments POSTED IN: HR Info Center

Case suggests an approach to accrued leave that doesn’t leave you with an FMLA violation lawsuit.

The FMLA can amount to a basket of snakes for HR pros in many ways, including benefits management.

For instance, there’s the slippery question of how to handle an employee’s accrued leave – vacation, sick or personal – when the person applies for FMLA leave.

A federal court has just handed down a decision that gives some guidance on how to avoid FMLA violation.

Sick leave left over

The case involved a Missouri employer that terminated an employee after he used up his 12 weeks of FMLA leave and still wasn’t medically cleared to work.

The employer had run the employee’s accrued sick leave concurrently with the FMLA leave, but he still had sick leave left when he was let go. He sued for FMLA violation.

The court ruled for the employer, saying that “tacking on” FMLA leave to other kinds of time off in order to pile up more than 12 weeks total was an FMLA violation.

It would be nice if that were the end of the story. You’d have clear legal backing to do what this employer did.

But it’s not quite so clear. One of the three judges dissented, and the dissent could sway courts elsewhere – such as where you are. This judge said that while employees indeed couldn’t “tack on,” employers depriving employees of benefits earned prior to FMLA leave could also count as FMLA violation. That’s what the employer in this case did, the dissenting judge claimed.

Where does all this leave you?

Running employees’ FMLA leave concurrently with other kinds of leave in not an FMLA violation.

But if they have accrued time off coming that exceeds 12 weeks, and they don’t get to take it, be prepared to compensate them with an equivalent, such as cash.

Cite: Slentz v. City of Republic, MO, No. 05-1663, 8th Cir., 5/12/06.

9 Comments on This Post

  1. scubby
    May 17, 2010 - 8:11 pm

    What if I am having my third “leave” in less than a year and these , along w ith other illness time would total over the 12 weeks of FMLA – could I have my employement terminated after the 12 weeks is up?

    • rliblogs
      July 8, 2010 - 9:20 am

      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.

  2. sue johnson
    June 1, 2010 - 3:29 pm

    if you have more that 12 weeks accured sick leave are you required to take fmla or can you use your accured sick leave?

  3. Sandra Topping
    June 9, 2010 - 7:56 pm

    Earlier in the year I had FMLA – I was back at for 3 weeks and through the Doctors advise for Surgery that was to take place in two weeks, suggested I be off, then my FMLA would start again to be off for the Surgery and Therapy. FMLA was denied through my employer.

  4. Anonymous
    July 8, 2010 - 1:20 pm

    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.

  5. Rose
    December 28, 2010 - 10:50 pm

    If a doctor forgets to send in notice for you to have more time off on disibility and you lose your job can you sue the doctor?

    • Anonymous
      December 29, 2010 - 2:29 pm

      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.

  6. pam
    May 25, 2011 - 4:12 pm

    If any employee goes out on short term disability and did not ask for FMLA leave but is now asking to go out on FMLA have to come back to work and give a thirty days written notice that they would like to go out on FMLA?

  7. steve
    November 14, 2011 - 8:51 pm

    does the employee have to see and have clearance to return to work from the MD who completed the certification form?

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