Avoiding FMLA violation: Accrued vacation time counts toward FMLA eligibility

by on January 14, 2010 · 3 Comments POSTED IN: HR Info Center

Court makes one-year threshold easier for employees to meet

When calculating employee weeks for FMLA eligibility, make sure you include all accrued vacation time, regardless of whether or not the employee actually took a vacation. If you don’t, you could commit an FMLA violation.

In a recent case an employee worked for a company for 51 weeks, then left work for treatment of a serious medical condition. He applied for and was denied FMLA leave because he failed to meet the 52-week service requirement. But he was put on medical leave. Shortly after the employee returned to work, the company reorganized and let him go.

He sued, claiming that his company’s refusal to give him FMLA leave, failure to reinstate him, and his unfair termination resulted in serious FMLA violation.

The company’s argument: He only worked here for 51 weeks!

But that’s where they were wrong.

It was an FMLA violation: Timing of vacation ‘irrelevant’

A district court in Maine said that the employee could use accrued vacation time to satisfy the FMLA’s 12-month service requirement. The court noted FMLA regulations stating that if any employee is maintained on the payroll for any part of a week, including any paid or unpaid leave (e.g. sick leave, vacation days) the week counts as a week of employment.

The court also noted that FMLA regulations say that any vacation taken counts toward the 12-month requirement.

Cite: Ruder v Maine General Medical Center, U.S. District Court, District of Maine, No. 01-CV-220-B-S., 5/10/02

3 Comments on This Post

  1. Ksullivan
    May 4, 2011 - 4:21 pm

    Question. If someone needs to go on FMLA but does NOT have any vacation or personal left and is already in the hole, can they use FMLA retroactively for that time already used up?

  2. Smjohns6
    June 18, 2011 - 1:05 am

    Does benefits such as sick time and vacation
    Stop accruing during leaves of absence
    While taking maternity leave?

  3. Jordan Warg
    May 11, 2016 - 6:25 pm

    Question, is there a cap/ maximum on the amount of paid vacation time an employer can require you to use towards your fmla or can they just use up all of it? Does the employer have to leave the employee any amount of available vacation time?
    also are they required to notify the employee of usage of all vacation time in any other means besides a pay statement???

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