FMLA / PTO Question

[umbra123]

Hello All. First time poster here.

I have a question concerning FMLA and Personal/Paid Time Off (PTO) plans.

Can a company that uses a PTO plan, as opposed to a No-Fault Attendance Policy, count FMLA approved time as part of the PTO calculation?

Specifically, if an employee is "awarded" 120 PTO hours and uses 60 of those hours during the year through normal use and subsequentally applies for and is approved for 80 hours under FMLA certification, be terminated upon return for using "excessive" PTO?

Or if an employee uses 60 hours of standard PTO and 60 hours of FMLA (paid by employer choice) for the total 120 hour bank, can a subsequent tardiness or absenteeism result in disciplinary action, up to and including dismissal?

 

[Peppermint]

It is legal in every state for the employer to require use of PTO for FMLA leave.

Are you saying that the employer is using FMLA absences as an attendance issue? That they can't do, whether the leave is paid or not.

 

[umbra123]

It is legal in every state for the employer to require use of PTO for FMLA leave.

Are you saying that the employer is using FMLA absences as an attendance issue? That they can't do, whether the leave is paid or not.

Hi Peppermint- Thank you for the reply.

The employer's position on this matter is that an employee is entitled to 120 hours of PTO. When an employee's total PTO exceeds this 120 hour limit, regardless if part of those hours include FMLA time or not, the employee is put on warning for being in a "no-pay" situation. Any additional time off, unless it is FMLA certified, will result in dismissal.

So in answer to your question, yes, the FMLA hours are being used in a calculation that creates an attendance issue.

 

[cbg]

The FMLA statute specifically gives the employer permission to require the employee to use any kind of paid leave (regardless of what you call it) as part of their FMLA.

Since the employer is not firing you for the use of additional time off if it is FMLA certified, I'm not seeing any illegalities.

 

[umbra123]

Thank you for your input cbg. While treading on very thin ice, I can see how the termination issue can be worked around.


So let's take the issue to the next step....

If we put that employee "on warning" as a result of excessive absences or for using all available "PTO", are we in violation?

As the company policy specifically states that an employee "on warning", cannot receive raises, promotions, or apply for other positions within the company; are we using the FMLA hours as a negative factor in an employment action?

I believe the law reads:

Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.

And isn't the very fact that the employee is disciplined at all by being put on warning in violation?

 

[Peppermint]

If the employer requires use of PTO for FMLA, then disciplines you for overtaking your vacation while of FMLA, yes, I do see a possible violation IF you experience an adverse action OTHER than the "warning". For example, if XX number of warnings result in your firing. However, we're not there yet.

 

[umbra123]

If the employer requires use of PTO for FMLA, then disciplines you for overtaking your vacation while of FMLA, yes, I do see a possible violation IF you experience an adverse action OTHER than the "warning". For example, if XX number of warnings result in your firing. However, we're not there yet.

Hi Peppermint- Actually we're way past there.

I guess my question to the board is: Isn't the warning itself a negative action? Policy is that an employee with an active/current warning is not eligible for promotion, raise, or transfer to a different department. In other words, because the employee over-used her PTO time as a direct result of exercising her rights under FMLA, she is now denied opportunities that are available to other employees. Simply being denied those opportunities is in fact an adverse action, ie: if she hadn't used FMLA leave, she wouldn't be "on warning", and she would be eligible for a raise, a promotion, or to even have the opportunity to apply for another position within the company.

 

[Peppermint]

cbg is better at this than I am. Hang on for her response.

 

[umbra123]

Thank you very much for your input Peppermint.

 

[cbg]

The employer cannot take adverse action against an employee for using FMLA. They can for overusing PTO.

The only thing the employer would have to do to be in full compliance with the law, would be to make exceptions for warnings that are attached to PTO that was used in place of FMLA, and the employer would not have any kind of claim until s/he had actually been denied a promotion, raise or transfer specifically for this reason.

 

[Peppermint]

I guess what is confusing me is that it sounds like the employer is forcing the overuse of PTO, at least according to what they consider "overtaking".

 

[cbg]

I understand that. But until there's actually been an adverse action taken, there's no violation. Putting the employee on notice that they are out of PTO and cannot take any more time off unless it's FMLA is not, in my opinion, violating the statute. I doubt the employee would be very pleased if there was no such notice, they took non-FMLA time off and were termed as a result.

 

[umbra123]

I understand that. But until there's actually been an adverse action taken, there's no violation. Putting the employee on notice that they are out of PTO and cannot take any more time off unless it's FMLA is not, in my opinion, violating the statute. I doubt the employee would be very pleased if there was no such notice, they took non-FMLA time off and were termed as a result.

Thank you very much for your response cbg. I appreciate you taking the time to answer.

Would you consider that the individual is denied the opportunity to get a raise, promotion, or apply for another position an adverse action?

Again, it is written policy that an employee on warning cannot get promoted, get a raise, or apply for another position. Whether the employee is entitled to a raise or promotion is moot as they cannot even be considered for these actions while on warning/notice. That they are denied the opportunity to apply for an internal job opening appears even more egregious and in violation of the statute as a negative employment action.

 

[cbg]

Okay, let me try one more time.

The employer can put any kind of policy he wants into the handbook. But until he ACTUALLY denies someone a promotion, raise, or transfer BECAUSE OF time that was attributed to FMLA, he has not broken the law.

Has anyone ACTUALLY been refused the opportunity as yet? Or is everyone just assuming that the employer will make no exceptions, despite the fact that he's already indicated that FMLA-based time will continue to be protected from the policy?

 

[umbra123]

Sorry for being obtuse cbg

To answer your question, yes:

The employer has prevented the employee from applying for a new position within the company (because policy states she cannot apply for a new position while on warning). She asked her supervisor and was told she could not apply.

The employer has denied the employee a raise (policy states the employee cannot receive a raise while on warning). The employee was scheduled to receive an annual salary increase and was told she was not eligible.

The employer has denied the employee a promotion, even though the employee received an outstanding review, except in regards to use of personal time off.

The employee could not apply for tuition reimbursement (policy states the employee cannot receive tuition reimbursement while on warning).

-Similarly situated employees have received raises during this time.
-Similarly situated employees have been promoted during this time.
-Similarly situated employees have received tuition reimbursement during this time.
-Similarly situated employees have applied for other positions within the company during this time.

My belief is that the employer has discriminated against the employee specifically for use of FMLA time, though the employer vehemently denies that these actions are a result of using FMLA time but rather they are for mis-use of total personal time.

 

[cbg]

Then that employee can contact the US DOL and see what they say.

 

[umbra123]

I believe that is what will happen next.

Thank you both (Peppermint and cbg) for your input and perspective.

 

[umbra123]

UPDATE

This matter was brought to the USDOL.

According to the investigator from the DOL, there are definite violations to the FMLA in this case. An employer can not put an employee on notice of excessive absences if part of those absences include FMLA time. Also, while the employer may ask about the nature of an absence, only the person/department administering the FMLA compliance may inquire about specifics regarding the absence once an employee states it is FMLA related. Any additional questions regarding the absence are then considered harrassment.

All that being said, the DOL is limited in actions it can take against an employer in an FMLA violation. It cannot view employer records beyond those of the employee making the complaint. The typical outcome in such a matter would be job reinstatement.