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THIS WEEK'S TIP: Paid Time-Off During FMLA Leave
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
THIS WEEK'S TIP: Paid Time-Off During FMLA Leave

Even the most FMLA-savvy professionals can get tripped up figuring out
how vacation, sick, and other forms of paid time-off affect FMLA leaves.
Special Announcement: No HR Matters E-Tips next week

Please note that we will not publish HR Matters E-Tips next week. Our
next issue will be January 4, 2005. We wish you all a joyous holiday
season and a very happy new year.
THIS WEEK'S TIP: Paid Time-Off During FMLA Leave

You probably know that the Family and Medical Leave Act (FMLA)
requires covered employers to provide eligible employees 12 weeks of
unpaid leave.

But what happens when an FMLA-eligible employee also has another
type of accrued paid leave available to use, such as vacation or sick
leave? Can you require use of the paid time-off during the otherwise
unpaid FMLA leave? Can the accrued paid leave extend the length of
the FMLA leave?

To help you sort through these and other tricky issues, read the Q&A
below to find answers to eight of the most frequently asked questions
relating to the FMLA and paid leave.

1. How does paid leave interact with the FMLA's requirement of
unpaid leave?

The FMLA only requires covered employers to provide up to 12 weeks of
* unpaid * leave (1) for the birth and care of a newborn child of the
employee; (2) in connection with a child's placement with the employee
for adoption or foster care; (3) to care for a spouse, child, or parent who
has a serious health condition; or (4) when an employee is unable to
work because of the employee's own serious health condition. It does
not require employers to provide any paid time-off. However, if you
provide any paid leave, such as paid vacation or sick leave, the FMLA
allows that time to be substituted for the otherwise unpaid leave so that
they both run concurrently.

2. Who chooses whether an employee uses paid time?

The FMLA allows you to require, or employees to choose, to use
accrued eligible paid leave for all or part of the 12-week FMLA
entitlement. Most HR and legal experts advocate requiring employees to
use any such accrued paid time during an FMLA leave. This approach
provides employees with some income during the unpaid leave while
also limiting the total time off the employee may take during the year. If
you want employees to use their paid time during FMLA leave, you
should state this requirement in your leave policies. (See #8, below.)

3. If paid leave is used, does it extend the FMLA time?

No, not as long as you have a policy requiring the use of paid time-off
during FMLA leave and notify employees of the policy. In this case,
employees are entitled only to a total of 12 weeks of FMLA leave,
regardless of the combination of paid and unpaid leave.

However, if you do not require an employee to use accrued paid time
concurrently with the unpaid FMLA leave, the employee will still have the
unused paid time available for use after the end of the FMLA leave. As a
result, the employee may be able to extend the leave longer than 12
weeks. Similarly, if you do not properly notify an employee that the paid
time must be used during FMLA leave, you may not count that paid time
against the FMLA entitlement. (See #8, below.)

4. When may employees elect to use accrued paid vacation or
personal leave during their FMLA leave?

Accrued vacation or personal leave may be used during any type of
unpaid FMLA leave, and you may not restrict when this time can be used
during qualified FMLA leaves. In addition, if you provide paid leave to
care for family members, employees may use it for FMLA leaves to care
for a newborn or newly placed child, or to care for a seriously ill parent,
spouse, or child.

But, you may limit the use of paid family care leave to circumstances
specifically permitted by your paid family leave policy. So, for example, if
your policy provides paid leave to care for a child but not to care for a
parent, you do not have to allow an employee to substitute paid family
leave for FMLA leave to care for a seriously ill parent.

5. May employees use paid sick leave during FMLA leave?

Paid sick and medical leaves may be substituted for unpaid FMLA leave
only during FMLA leaves taken for an employee's own serious health
condition, or, if your policy allows, to care for a seriously ill parent,
spouse, or child. So if your policy permits employees to use accrued
paid sick days only for their own illnesses, they may not use the sick
days during an FMLA leave taken to care for a family member.

Keep in mind that some state family and medical leave laws may impose
additional requirements with respect to employee use of sick leave. For
example, the law in Minnesota requires employers to permit employees
to use their personal sick leave benefits to care for a sick or injured child.

6. What happens when an employee is on paid leave covered by
workers' compensation (WC) or by a short-term disability plan?

The FMLA provisions allowing the substitution of paid leave do not apply
if an employee is receiving compensation through a temporary disability
benefit plan or as a result of a WC injury. Since employees on WC
leave or short-term disability typically receive up to two-thirds of their
normal pay, the FMLA regulations do not allow the use of paid leave,
even to make the employee "whole" or if requested by the employee.
(Note, though, that the law does not specifically address the use of paid
leave during waiting periods when no WC or disability benefits are

However, you can (and should) designate this leave as FMLA leave and
count it against the employee's 12-week FMLA entitlement. If you do
not, you may find that the employee will still be entitled to FMLA leave
after taking an extensive WC or disability leave.

7. Does the use of paid leave affect medical certifications,
recertifications, and advance notice of leave?

It can. The FMLA specifically allows you to require medical certifications
and recertifications when leave is needed as a result of a serious health
condition. In addition, the law also permits you to require up to 30 days
notice when the need for leave is foreseeable, or to require as much
notice as is practicable in the case of unexpected leaves. The
regulations, however, indicate that the terms of your paid time-off
policies, and particularly your sick leave plans, may have the effect of
limiting your right to obtain these certifications and advance notice.

Specifically, if your sick leave policy contains advance notice and
medical certification requirements that are more lenient than those
permitted under the FMLA, then only those less stringent requirements
may be imposed during the period of paid FMLA leave. For example, if
your sick leave policy does not require employees to provide medical
certification, and the employee takes an FMLA leave and uses the paid
sick leave, then you may not require medical certification before the
employee begins the FMLA leave. (However, if an employee substitutes
paid vacation or personal leave for time off for a serious health condition,
you may require the employee to comply with your sick leave policy's
certification and notice requirements.)

Similarly, if short-term disability benefits provided by the employer are
substituted for all or part of an unpaid FMLA leave, you may not require
the employee to comply with any of the disability plan's notice and
certification requirements that are more restrictive than the FMLA's in
order to take FMLA leave. However, if the employee refuses to comply
with the disability requirements, he will then be ineligible to receive the
disability benefits but may still be eligible to take FMLA leave.

8. What are our obligations to notify employees about the use of
paid leave during FMLA leave?

The FMLA has several notice requirements. First, if you provide an
employee handbook or other written materials covering your workplace
policies, you are required to provide information regarding the FMLA,
including your policy on the use of accrued paid time-off during FMLA

Second, at the time employees request FMLA leave, you must give them
a separate, written notice detailing their rights and obligations under the
FMLA. This notice should explain, among other things, your requirement
for the substitution of eligible paid leave and the conditions related to any
substitution. Your decision to require substitution of any paid leave must
be made at the time the employee gives notice, or as soon as you
determine the leave qualifies as FMLA leave.

If you do not give proper notice, the employee may be entitled to the 12
weeks of FMLA leave plus any eligible accrued leave afterwards.
Remember, it is the employer's responsibility, not the employee's, to
determine whether a leave counts against the 12-week FMLA allotment.
Subscribers to the Personnel Policy Manual and HR Policy Answers on
can find more information on paid leave during FMLA leave in
Leaves of Absence
, Chapter 703, note 40.

Not a subscriber? Interested in the information from this chapter?
Go to
^^^^^^^^^^^^^^^^^^ Featured FMLA Download ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Complimentary download from your HR Matters E-Tips editors:

FMLA checklist and 10 Frequently-Asked Questions about the FMLA (which focuses on the legal definition of a "serious health condition" and on the proper handling of medical certification).

Go to:

Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.


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