FMLA accrued paid vs unpaid time

2284103 · February 2003

When a person requests FMLA for maternity leave, she usually asks that we pay her any accrued vacation, sick/personal time until it runs out. We track the FMLA and the paid time concurrently.
However, if there is an unplanned serious health condition we don't always run the paid and unpaid time concurrently. Sometimes, we don't start counting the FMLA time until after all the paid time has been exhausted, especially if the person has not requested FMLA. Are we allowed to do both scenarios, or must we be exactly consistent between planned and unplanned leaves? kmd AZ

Rockie · February 2003

It's my understanding of the law that a company has to pick one way or the other to handle this - they cannot pick or choose according to the individual or the situation. The company must also notify the employee which method it is using.

Don D · February 2003

I would ask why you would treat the situations differently in terms of concurrent leave with pay? The other question is why do you assume maternity leave results from 'planned' events. Often that is an unplanned result as well as other types of medical situations. What you have here is sex discrimination as well as an FMLA procedural violation.

2284103 · February 2003

We have always tried to do what is best for the individual. If a person requests FMLA fr a planned event (maternity was just an example), whether it be for a baby or a planned surgery, we schedule the FMLA and the necessary replacement of personnel to cover that period. If it is planned, most people try to save as much paid time as possible to use while they are out, thus it runs concurrently. However, if complications exist and their time out is more than the 12 weeks, we would adjust their start time of the FMLA to a later date, even if it takes them to the end of their paid time. Therefore, they could have the full 12 weeks starting at the end of their paid time. We do whatever is best for the employee. They are too hard to find, so we don't want to do anything to drive them away. Of course, if their problem lasts longer than all their paid time plus the additional 12 weeks, we officially record them as terminated, but always will consider them for re-hire should their situation improve and we have a place for them.

njjel · February 2003

Policies are put in place for a reason - to ensure all employees are treated equally is one of them. By changing your policy to fit the needs of individuals puts the company in a dangerous position.

HRPeg · March 2003

Rockie is correct. You need to treat all FMLA leave the same or the company is opening themselves up for discrimination claims. I recommend you read the policy available to members on this website. Most companies require employees to use any accrued PTO concurrently, of course, you can be more generous if you want. However, you must be generous to all!

sonny · March 2003

While your intentions may be good by doing what is best for the employee, I have to agree strongly with what has been stated already. What is best for all employees is to be consistent.

Margaret Morford · March 2003

Maybe I missed something in the original post, but I think it stated that most of the employees taking maternity leave request to use benefit time during FMLA. FMLA permits the employer to decide whether the benefit time and FMLA runs concurrent. Most companies require that it run concurrent. However, I believe that a company can choose to permit the employee to decide whether to use his/her time concurrent. If that's what you've done, I don't think you have a problem. If you are forcing only planned FMLA's to use time, but unplanned not to, then everyone above is correct and you need to change your policy.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

FMLA accrued paid vs unpaid time

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