Coordinating FMLA, Vacation & STD

gsmiller

Per union contract, employees are eligible for STD and up to 4 weeks vacation. Here's the scenario: An employee has a heart attack and is hospitalized and put on FMLA. His STD benefits kick in on day 8 of his absence and last for 13 weeks. Can management legally require that the employee use up his 4 weeks of vacation time prior to receiving STD benefits.

POPEYE

It will depend on how your policy is written and how you have handled in the past. The FMLA regs do not DICTATE specifically concerning compensation during leave but do give some guidelines as to what you can and can't do.

gsmiller

The union contract really doesn't dictate how to handle this issue. However, in the past, we have granted employees FMLA as required with the proper documentation. We have not required them to use their vacation time, but have paid then short term disability if the FMLA was for their own "serious illness". We have asked them if they wanted to use a week's vacation to cover their first week of disability, which is a waiting period before STD kicks in. The majority have chosen to take a week's vacation. I know that FMLA regs state that either an employer or employee can choose to use accrued leave, but I guess my question is how to administer?

LindaS

Actually, the federal regs. allow the ER to determine whether or not to require an EE to use any available paid time off prior to receiving unpaid time. I don't know your state regulations so that may be something to look into.

We just went through something similar with our union and the new policy states that an EE on leave that does not qualify for payment under the STD plan (in your case the 7-day waiting period) ARE required to use any available vacation time prior to receiving unpaid vacation. Once the STD kicks in, they are no longer required to use the vacation. In WI we have a state regulation that says that under WI FMLA the EE can choose whether or not to use vacation so the above policy does not kick in until the WI is used up.

Hope this helps.

Don D

"...under the STD plan (in your case the 7-day waiting period) ARE required to use any available vacation time prior to receiving unpaid vacation."

I'm not sure what you are referring to as 'unpaid vacation'. Typically a union contract, with a halfway thinking bargaining agent or international rep, will clearly state that the employer cannot require the employee to use vacation for his personal illness. But, regardless, the contract rules. And, in the absence of contract language, the employer is at liberty to craft its own policy.

The contracts I've been involved with do not allow the employer to require that vacation be burned in the event of personal illness, but does in case of familial events.

A bigger headache I've had is in employees assuming that an STD or LTD program is a flat entitlement to that amount of paid time off; a ticket to ride. I'd rather have it defined as a safety net that will pay that maximum amount of time if they are on some approved leave of absence. In other words, for example, an employee might have an entitlement to 12 weeks of FMLA and have a 13 week STD program in the handbook. I prefer that the policy state that the employee has NO protection or paid time after the expiration of the FMLA. Union or not. But you have to be a slick negotiator, as always.

LindaS

Don -

Thank you for pointing out my error. What I meant to type was "unpaid time off". As far as the contract, it is silent on the issue you stated above and I have not seen any contract that specifies the use of vacation but I'm sure it's out there.

Thanks for the tip.

amercy

New question.

I have someone who went for a gastro bypass but requested vacation time for the dates of the surgery plus recuperation time; however, never told us that the vacation time was for the surgery. The vacation time was approved and then I get a call stating that she was having surgery. I sent out FMLA paperwork, but do I now count it as FMLA or am I counting it as vacation time?

HRinFL

I would send the FMLA paperwork to the ee and have the doctor complete it. I would believe that even though this is considered an "elective" procedure, that it would qualify under FMLA. I would then start the clock. Still pay the ee the vacation benefit, just run FMLA as well.

POPEYE

DITTO!