FMLA - Use of Paid Leave Time

FMLA – Use of Paid Leave Time


Can an Employee be Required to Use Paid Leave or PTO During FMLA?

Since the FMLA came into existence, employers have been advised, where possible, to run FMLA concurrently with other leaves. Doing so prevents leave stacking.

In essence, an employee cannot be required to use PTO or Paid Leave Time if there is another source of payment during FMLA.  If you are required to use your PTO or Paid Leave during FMLA, you will be entitled to receive these benefits back from your employer.

FMLA leave is generally unpaid as there is no requirement that an employer pay an employee who is on FMLA, and during unpaid FMLA leave an employer can require that employees use paid leave.  Many times we see that an employee must “burn” their vacation and sick time at the beginning of FMLA.  This sometimes benefits the employee as they continue to receive a paycheck during FMLA.

The FMLA regulations provide, however, if during FMLA leave an employee also receives benefits, in any amount, from a disability plan or workers’ compensation, the FMLA leave is not unpaid. Because the FMLA’s general rule permitting employers to require employee substitution of paid leave only applies to unpaid FMLA, during periods of FMLA when any income replacement is received, employers cannot require employees to substitute paid leave. This exception to the FMLA general rule applies regardless of the amount of income replacement received.

This issue was at the center of Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. 2007). In that case, Alice Repa suffered an injury that required surgery and a six-week absence from work. During the leave Repa received a weekly $300 disability benefit through a third-party disability plan. While she was on FMLA, her employer required her to use vacation and sick leave. Repa sued seeking to have her sick leave and vacation benefits restored. Repa was awarded summary judgment as the Court held that an employer’s ability to require an employee to substitute paid leave during FMLA is limited if, during FMLA leave, the employee also received disability benefits. While Repa, during her FMLA leave, could have been provided the opportunity to elect to substitute paid leave at the time she was also receiving disability benefits, it was unlawful for her employer to require the substitution of her vacation and sick time.

Review  29 C.F.R. § 825.207 of the FMLA regulations if you want a closer look into this issue.

Robert Maizel is an Experienced Trial Attorney in Philadelphia, Pa. with over fifteen years of trial experience.

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