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Does FMLA have to run concurrently with paid leave (vacation)?

Discussion in 'Medical Leave & Disability' started by birdy, Jan 25, 2018.

  1. birdy

    birdy Law Topic Starter New Member

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    I work for a company that is "employee friendly" when it comes to FMLA. A coworker of mine recently told me that one of my company's practices is illegal. They grant FMLA, but they allow the employee to use their paid leave (vacation/sick days), and then after that is exhausted, then they begin FMLA (rather than paid leave running concurrently with FMLA). For example, an employee has 50 vacation days accrued and goes to the doctor on January 1 and is granted leave on January 1. The letter to the employee states "Your request for medical leave beginning January 1, XXXX has been received. Since unpaid FMLA begins once all available sick and personal days are exhausted, your FMLA leave beings March 12, XXXX through June 1, XXXX". Is this illegal? Or is it just extremely generous?
     
  2. txls

    txls Well-Known Member

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    It sounds like extremely generous to me. The only way I can imagine it might be illegal is if during the period of paid sick/personal days some kind of action was taken (example change in duties or pay) that would be contrary to FMLA protections.
     
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  3. army judge

    army judge Super Moderator

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    Do you believe FMLA leave mandates the employer to continue paying the employee for the duration of the time off taken?

    FMLA only requires unpaid leave.

    However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period.


    Read this:

    FAQs: FMLA - Wage and Hour Division (WHD) - U.S. Department of Labor
     
  4. cbg

    cbg Super Moderator

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    Why on EARTH do you think it would be illegal for an employer to provide more time than is required? Tell your idiot co-worker that she doesn't know what she's talking about.

    BTW, the statute expressly permits an employer to require an employee to exhaust their paid leave as part of their FMLA, so if the idiot is thinking that somehow they're supposed to be able to save some of their paid leave for after the unpaid leave is gone and they want to go to Disney World later in the year, tell them they're twice an idiot.
     
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  5. ElleMD

    ElleMD Well-Known Member

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    Totally legal, just generous. TX is right that just regular old sick leave or annual leave doesn't carry the same protections as FMLA unless the company chooses to grant those protections. There could be some issues if for example, the employee is off for 12 weeks using their own leave, not designated or protected as FMLA, and upon return they are denied a promotion because they took too much time off, or the company takes some other sort of action because of the leave. Most of the time, it probably isn't going to be an issue.
     
  6. birdy

    birdy Law Topic Starter New Member

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    Let me clarify a bit. The part that is in question is if it's legal to start FMLA after an employee has already been absent 50 days. My coworker is telling me that FMLA must start on the first day of absence. There is no issue with the pay.
     
  7. army judge

    army judge Super Moderator

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    Right or wrong, this little website can do NOTHING but offer words.

    Even if the words are correct, no entity need to heed what you learn here.

    If this concerns you, it might behoove you to discuss it with the leaders, movers, shakers, hotshots, lil bosses, big bosses, potentates, near greats of your organization.

    You are always FREE to spend some money and hire yourself a lawyer.

    Good luck.
     
  8. txls

    txls Well-Known Member

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    Your co-worker is wrong. Ask her to show you where she got that idea.
     
  9. cbg

    cbg Super Moderator

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    The employer MAY start FMLA on the first day. There is nothing in the statute saying that they MUST.

    What the law cares about is whether the employee gets all the time entitled to them by statute. If the employer's policy does not result in the employee receiving LESS time than they are entitled to by law, the employer is legal.
     
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