Generally, FMLA Leave is unpaid, but an employer can require employees use accrued vacation and sick leave to cover some or all of the FMLA Leave. The use of paid benefits and FMLA would run concurrently and would not extend the length of the leave.
An employer may require an employees to use their FTO benefits, such as vacation days, sick days or personal days for FMLA leave. In these situations, an employer should have the two types of leave run at the same time. This will shorten the total amount of leave time (both paid and unpaid) that the employee uses in a given year. In addition, the employee will receive pay during an otherwise unpaid FMLA leave. If the employee does not use up all of their FTO during FMLA leave, the employee is allowed to use any remaining accrued FTO benefits after their FMLA leave expires.
Alternatively, an employer may choose to have the employee take FMLA leave and FTO leave consecutively by allowing the employee to use their FTO benefits first, and then use their FMLA leave entitlement. This, however, could cause the employee to be out of work for an extended period of time, and could disrupt an employee’s business operations.
It is the employer’s obligation under the FMLA to determine whether the leave is being taken for an FMLA-qualifying reason and the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave once the employer has enough information to make that determination. The employer has an obligation to designate leave as FMLA-qualifying as soon as the absence becomes an FMLA-qualifying event. As soon as the leave of absence qualifies as FMLA leave, it should be designated as such regardless of whether the employee wants FMLA to apply.
If the employer fails to designate an absence as FMLA leave it can have a negative impact on an employer’s operation. If an employer allows an employee to take sick leave or vacation without designating the absence as FMLA, the employer will have allowed the employee leave that they otherwise are not entitled to by law. The employer’s policy will govern whether the employer may require paid leave to run at the same time as FMLA leave. If the employer’s policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave to run concurrently. In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave.
Eligible employees may request a family and medical leave of absence under the federal Family Medical Leave Act (“FMLA”) in the circumstances described below. Eligible employees are those who have been employed by the Company for at least 12 months (not necessarily consecutive), have worked at least 1,250 hours during the 12 months immediately prior to the family and medical leave of absence and are employed at a worksite where there are 50 or more employees of the Company within 75 miles.
Employees must request a planned family and medical leave at least 30 days before the leave begins. If the need for the leave is not foreseeable, employees must request the leave as soon as he or she becomes aware of the need for leave. Failure to comply with this requirement may result in a delay of the start of the leave.
A family and medical leave may be taken for the following reasons:
A “serious health condition” is one that requires inpatient care in a hospital or other medical care facility or continuing treatment or supervision by a health care provider. A “covered service member” is a member of the Armed Forces (including National Guard or Reserves) who is the employee’s spouse, child, parent or next of kin, and is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty. A “serious illness or injury” is an injury or illness incurred in the line of duty while on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.
Medical Certification: When leave is requested for medical reasons, the employee must submit a medical certification from the health care provider that establishes the employee is eligible for family and medical leave. The certification must be provided as soon as is reasonably practical, and not later than the date leave begins or within 15 days of the Company’s request, whichever is later. When the leave is requested because of the employee’s own serious health condition, the certification must include: (1) the date the serious health condition commenced, (2) the probable duration of the serious health condition, and (3) a statement that, because of the serious health condition, the employee is unable to work or needs medical treatment.
When leave is requested to care for a family member who is ill or injured, the certification must contain: (1) verification the family member has a serious health condition or serious injury or illness, as defined above, and the date such condition began, (2) the probable duration of the condition, (3) an estimate of the amount of time the health care provider believes the employee will be needed to care for the family member or covered service member, and (4) a statement that the condition warrants the participation of the employee to provide care. The Company reserves the right to contact the health care provider to seek clarification of information in the certification, as needed, and may require recertification, as appropriate.
Before returning to work at the conclusion of a leave due to the employee’s own serious health condition, the employee is required to provide a certification from his or her health care provider regarding the employee’s fitness for duty. The employee must provide the required medical certification to the Company in a timely manner to avoid a delay or denial of leave.
Family and medical leave may be taken for up to 12 workweeks during the designated 12-month period for the purposes described in (a)-(d), above. The12-month period will be calculated based on a calendar year. Leave for the purpose described in (e), above (to care for a covered service member), may be taken for up to twenty-six (26) workweeks in a single 12-month period. During the single12-month period, an eligible employee shall be entitled to a combined total of 26 workweeks of leave for the reasons specified in paragraphs (a)-(d) and (e) above. In other words, any family and medical leave taken for reasons specified in paragraphs (a)-(d) above (up to 12 weeks), will be counted towards the total 26-week entitlement permitted for leave to care for a covered service member with a serious illness or injury during the single 12-month period. All time off that qualifies as family and medical leave will be counted against the employees federal and, if applicable, state family and medical leave entitlement to the fullest extent permitted by law.
During a family and medical leave, group benefits will be maintained for up to 12 workweeks (or up to 26 weeks when leave is for the purpose of caring for a covered service member), as if the employee was continuously employed.
If the employee does not return to work on the first workday following the expiration of an approved family and medical leave, the employee will be deemed to have resigned from his or her employment. Upon returning from such a leave the employee will normally be reinstated to his or her original or an equivalent position and will receive pay and benefits equivalent to those the employee received prior to the leave, as required by law. In certain circumstances, “key” employees may not be eligible for reinstatement following a family and medical leave. The Company will provide written notice to any “key” employee who is not eligible for reinstatement.
If you and your spouse both work for our Company, the two of you will be entitled to a combined total of 12 weeks of leave to care for a newborn, newly adopted child, or recently placed foster child, and to care for a parent with a serious health condition. If you both qualify for the 26-week leave permitted to care for a covered service member, you will be entitled to a combined total of 26 weeks of leave for this purpose, as well as to care for a newborn, newly adopted child, or recently placed foster child, or to care for a parent with a serious health condition.