FMLA/Vacation - Required to run Concurrent

hhaynal

Company's old FMLA policy stated that vacation was to be used and run concurrent with any FMLA leave request. New corporate policy, effective 1/1/2005 now reflects that vacation may be used, but does not require, against a requested FMLA leave.

My question to the forumites, what does your respective policies state on this point, do you have a preference (require vs optional), and why?

System

hhaynal

I really don't see the benefit of not running the leave concurrently.

The FMLA regulations require that either the employer or the employee be permitted to "substitute" run so that FMLA leave runs concurrently.

Failure to run FMLA leave concurrently allows for 1) stacking of the leave; 2)games playing by employees who want to save vacations later in the year.

I am not sure that the language change is as important as whether there is a change in practice.

Bill Bowser
Editor
Delaware Employment Law Letter

hhaynal

I personally agree with everything each of you has stated in your posts. Unfortunately, the new policy that went into effect comes from corporate. Some days you just shout to the rafters with no one listening, or caring to.

Nat

We require that all accrued leave benefits be exhausted before an employee can take FMLA without pay - so it must run concurrently. I wouldn't recommend any other way.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 02-24-05 AT 09:38AM (CST)[/font][br][br]The only situation which I find a toss-up is in requiring comp to run concurrent. While I agree that it's almost always a good practice to run them concurrently, most state comp laws allow the employer to REQUIRE that the employee return to work if restricted duty is available and the doctor so allows; however, the FMLA prohibits you from doing that. So, if you have a comp employee out and you decide to run FMLA concurrent, that very scenario could bite you.

System

[font size="1" color="#FF0000"]LAST EDITED ON 02-24-05 AT 09:48AM (CST)[/font][br][br]I would suggest that WC run concurrently in all situations.

You scenario deals with employees who do not want to return to work. You are correct that the FMLA and DOL regulation prohibit you forcing them off of FMLA. As a result, the leave will continue to count towards there FMLA entitlement.

The FMLA regulations make clear that their refusal to return may (and probably will) have consequences for their continued receipt of WC. The regulations make clear that the cut off of WC is governed by the WC law, not the FMLA.

Bill Bowser
Editor
Delaware Employment Law Letter

Don D

Mr. Bowser: The FMLA has no association with state comp laws, nor does it suggest anything of the sort. I find nothing in the FMLA about workers comp. Can you perhaps cite the relevant section of the law to support your comment?

System

Don D,

Sorry for the delay in responding. The FMLA regulations do make reference to integration with WC laws and most of what has been discussed in this thread. 29 CFR 825.702 (d)(2) states:

(2) An employee may be on a workers' compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers' compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the
employer). At some point the health care provider providing medical care pursuant to the workers' compensation injury may certify the employee is
able to return to work in a ``light duty'' position. If the employer offers such a position, the employee is permitted but not required to
accept the position (see Sec. 825.220(d)). As a result, the employee may no longer qualify for payments from the workers' compensation benefit
plan, but the employee is entitled to continue on unpaid FMLA leave either until the employee is able to return to the same or equivalent
job the employee left or until the 12-week FMLA leave entitlement is exhausted. See Sec. 825.207(d)(2). If the employee returning from the
workers' compensation injury is a qualified individual with a disability, he or she will have rights under the ADA.


[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.702.htm[/url]

Don D

You are correct. My apologies. I find this to be the only reason for not opting to run leaves concurrently. It's definitely a Catch-22. If you run them concurrent, you may eventually not be able to demand return to work under restrictions.

pork1

HHNAYAL: Our FMLA is for the protection of the job, which was and is the intent of the FMLA.

Compensation is then covered by our corporate Medical Leave Policy and requies the first two weeks of medical leave to be covered by Vacation Time hours, Sick time hours, or no pay due. Our employees do not have the option of saving time off, they can go without pay, but if they are not back by the deadline for the FMLA they could be terminated. They may request to use any awarded time off with pay, but that approval is subject to the needs of the work site and must be prior approved.

PORK