FMLA and requiring vacation (or any accrued) time to be used when receiving SDI benefits
Bucky333
29 Posts
Can anyone clarify the issue of requiring employees on FMLA to take accrued vacation rather than unpaid time? In California can the employer require the employee to simultaneously use accrued vacation, sick or other paid time off while receiving SDI? A recent federal appeals court case (org in Wisc) held that a DOL regulation prohibits an employer from requiring the use of paid leave during a FMLA leave when an employee is concurrently receiving benefits, (May 2007). I understand that the 7 day waiting period is still open for employers to require the employees to take accrued time.
At my organization, we coordinate the accrued time with the SDI benefits so the employee is not receiving more than their usual wages, but can the employee elect to take unpaid time if they are receiving ANY salary replacement benefits, ie not 100% of their wages? Thanks for any guidance, we don't have this happen very often as most employees take their accrued time at a coordinated rate with the SDI benefits, but this employee clearly doesn't want to take her vacation time for this leave. And from what I've been reading about the 2007 case, it seems like we can't require the employees to take the accrued time, either sick or vacation. Thanks for your help,
Comments
Ick! What a mess.
If the vacation time is for an hourly employee, I don't see any problems with allowing an employee to elect the use vacation time while also receiving benefits in California. If the vacation time is for what amounts to partial day deductions for an exempt employee, I have to say ask a California employment law attorney because you run into a potential FLSA problem. Ironically, if an exempt person has, say, 6 "hours" of vacation accrued and they take a day off and, for payroll purposes, a day is 8 "hours", you cannot pay them vacation time because you will have made a partial day deduction from their leave bank. However, vacation time is compensation owed in California and it may be OK there under the legal construal of vacation time. If it's more like a bank of held compensation than an hourly bank of leave time, there's probably no problem but you will need to ask an attorney.
If you require an employee to use any paid leave bank concurrently with FMLA time, you cannot require certification or any documentation that you would not otherwise request from someone normally requesting the use of that paid leave. Once the paid leave time is exhausted, if they request additional, continued FMLA time, you can request certification for the continued leave.
As far as coordinating FMLA, paid time off, and SDI -- I can't help you there. HRforME always knows something about benefits and she can probably help you more there.
It is my understanding (and I don't know a whole lot about CA state laws) that you can not force an employee to take paid time off in California under SDI (You can require use of up to two weeks of earned but unused vacation time under PFL though). But if the employee elects to, then under FMLA, then they can do so without having to do all the paperwork/certification for the time that they are being paid out of vacation/sick time. So yes, I do think that the employee could elect to take unpaid time and still get SDI....but I wouldn't quote me.
Instead, I would suggest reading through this website ----> http://www.edd.ca.gov/Disability/FAQs_for_Employers.htm
"Are employees required by law to use their vacation leave when collecting Disability or Paid Family Leave insurance benefits?
No, not for Disability Insurance..."
"How is the SDI benefit affected when an employee receives sick leave benefits at the same time? The SDI program treats sick leave wages as wages earned. SDI benefits will be reduced by the amount of sick leave wages received, and may render the employee ineligible for benefits depending on the amount of sick leave wages received and the employee's weekly benefit amount. If you integrate (coordinate) the sick leave (pay the employee sick leave wages in an amount which is the difference between the SDI benefit and the employee's full wage), the sick leave benefits received by the employee will not affect the SDI benefit. "
FMLA is one of the few reasons that you could (on a federal level at least) dock an exempt employee's pay and/or replace that pay with PTO....but CA has more stringent rules about using partial day PTO. And those rules seem to change on a sporadic basis dependent on current court cases and legislative moves.
Personally I would stick to CA court cases and information rather than other states. And possibly even check with local employment counsel to see where the current horizon is!
Here's an article dated in March 2007 regarding FMLA/unpaid time and SDI:
http://www.fenwick.com/docstore/Publications/Employment/EB_03-12-07.pdf
"Employee Receiving Disability Pay During FMLA Leave Not
Required to Substitute PTO For Unpaid FMLA Leave
The Seventh Circuit Court of Appeal confirmed that employers
cannot require employees to substitute accrued paid leave for
unpaid leave under the Family and Medical Leave Act (“FMLA”)
when the employee is receiving paid benefits during the FMLA
leave, such as benefits under state disability, the Paid Family
Leave, or workers’ compensation programs.
In Repa v. Roadway Express, Alice Repa took a six-week FMLA
leave for an injury not related to work. Under her employer’s
policy, Repa was required to exhaust her accrued vacation and
sick time during her FMLA leave. However, Repa also received
$300 per week from her union’s disability insurance plan. Repa
sued, claiming that her employer’s requirement that she use
paid sick time and vacation benefits while she was receiving
disability benefits under a separate plan violated the FMLA. The
Seventh circuit Court of Appeal agreed.
While the FMLA generally provides employers with the right
to require employees to use vacation and sick leave (or other
paid leave) during FMLA-covered leave, employers may not
mandate such use when the leave is not “unpaid.” The court
held that when an employee receives benefits under a temporary
disability leave benefit plan, the leave is not “unpaid” and thus
the employer cannot require the employee to use vacation or
sick pay in lieu of unpaid FMLA leave."
Of course, another court decision could have reversed that since then, but it is the safest path to NOT require the usage of PTO during FMLA when receiving other pay (SDI, etc)
Thank you HRforMe,
This court case was exactly the same one I noted that began this discussion. I agree that with this court's decision (and I haven't located any recent decisions that provided a reversal) it would be more prudent to not require the use of accrued time while receiving SDI or other paid benefit during FMLA leaves. Paid Family Leave (PFL) may be viewed differently, but let's not confuse the issue more.
Thank you all for your responses, it was helpful,