FMLA - Vacation Use
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I was reading the FMLA topic - Can you make an ee take vacation time and the discussion brought another question to my mind.
In the past, we have not required ee to use vacation time with FMLA and if they have elected to do so, we had opted NOT to count it as part of their FMLA time off, but rather as additional time off that was available for use as paid vacation time (not running concurrently). Is that still permissible because the new form WH-382 does not give an option - it says you can sub paid time i.e. vacation, but then goes on to say it will still count against FMLA time???
Comments
Whether or not you allow or require the use of PTO with FMLA is subject to your policy. Our policy requires that employees use PTO concurrent with FMLA. You do not have to require it. However, if you do you must have that requirement as part of your FMLA policy.
FMLA is strictly job and benefit protection. Any time that qualifies as FMLA should be designated as FMLA. I would not recommend allowing an employee two weeks of vacation time for what would be a FMLA reason and then start designating FMLA after that time has gone by.
FMLA time is FMLA time and whether or not they are being paid has no bearing on that designation.
Whether or not you allow or require the use of PTO with FMLA is subject to your policy. Our policy requires that employees use PTO concurrent with FMLA. You do not have to require it. However, if you do you must have that requirement as part of your FMLA policy.
FMLA is strictly job and benefit protection. Any time that qualifies as FMLA should be designated as FMLA. I would not recommend allowing an employee two weeks of vacation time for what would be a FMLA reason and then start designating FMLA after that time has gone by.
FMLA time is FMLA time and whether or not they are being paid has no bearing on that designation[/quote]
Subject to whatever changes may have occurred with the update, you are limited in what you can ask for with respet to certification if you are forcing vacation time to run concurrently with FMLA designated leave time. There are ways you can mitigate this by how you write your policy. Generally speaking, there are quite a few things that are optional under the regs and your policy really needs to square away which options your company is taking.
My response was a little short in explaining required use of PTO. Thanks for pointing that out.
You can require use of PTO if your require it's use for other leaves and it follows your regular leave policy on using PTO. i.e we allow the useof vacation, sick and personal days for any reason, thus we can require their use for FMLA. The law now states that if an employee is collecting WC or other disability, forced use of PTO cannot be required. However, an employee can chose to use PTO with it if company policy allows.
My response was a little short in explaining required use of PTO. Thanks for pointing that out.
You can require use of PTO if your require it's use for other leaves and it follows your regular leave policy on using PTO. i.e we allow the useof vacation, sick and personal days for any reason, thus we can require their use for FMLA. The law now states that if an employee is collecting WC or other disability, forced use of PTO cannot be required. However, an employee can chose to use PTO with it if company policy allows[/quote]
Again, subject to updates, there's more to it than that.
If you force someone to use paid leave concurrent with their FMLA, you are not entitled to ask them for anything that you would not normally ask for to use that same leave. For example, if you don't normally ask someone for their reason to take PTO or vacation, then you cannot ask for a medical cert for forced vacation/PTO use concurrent with FMLA until after the vacation/PTO time has finished and this can create some issues. You can mitigate this by how you write your PTO/vacation policy with respect to it's use to cover time out for illness or injury of the employee or <insert definition of various eligible entities as described in FMLA here> but rules on how you can (or can't) do that will vary with circuit and state, so this is very messy for a large employer.
This information is circa 2007 and does not derive solely from the regs. Use a lawyer, even if the new regs address this since they are exactly that: new.
My interpretation of the regulations are different than what you are stating. Let me see if I can explain.
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http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763
See 29 CFR 825.107 Beginning on Page 47
The regulations do not say you can’t ask for something you wouldn’t under your normal sick policy. What it says is you can enforce your sick policy to allow the leave only to be used as your policy states.
Example: Our sick days are allowed to be taken for any reason. Not sure why we call them sick days but we can use them for spouses, children, mothers, etc.
Therefore, we cannot restrict the use of those days under FMLA to only use for the employees’ sickness.
However, if your sick days can only be used for the employees’ own sickness then you can deny use of them if FMLA is taken to care for a family member.
Another example is if your sick policy states you must use 4 hour increments you cannot force these 4 hours for FMLA when only 2 hours are needed.
Think about this. You're saying that you can't force vacation time with FMLA unless you vacation policy says you can ask for a doctor's note. That's just not possible.
The former regulations used to state that sick time concurrent with FMLA meant that you could only require documentation based on your sick time policy -- not on FMLA certifications for that concurrent time.
From Jackson Lewis, the change is as follows "The current FMLA regs permit employees to comply with less a stringent medical certification standard under the employer's sick leave plan when the employee substitutes any form of paid leave for FMLA leave. The proposed rule DELETED this provision because it conflicted with the employer's statutory right (under 29 USC 2613) to require, as a prerequisite to FMLA leave for a serious health condition, that the employee provide a medical certification to substantiate the serious health condition. The final rule adopts the proposed rule."
So under the Final Regs, the employer has the right to ask for certification even if the employee is using PTO concurrently for FMLA leave.
eta: back to the OP, I think there is only one state currently that doesn't allow an employer to force use of PTO...that is California. But check with your state laws on that one. Federally, there is not an issue since there are no laws that even require PTO and the feds give the states and employers the right to control this (at least for now)
The former regulations used to state that sick time concurrent with FMLA meant that you could only require documentation based on your sick time policy -- not on FMLA certifications for that concurrent time.
From Jackson Lewis, the change is as follows "The current FMLA regs permit employees to comply with less a stringent medical certification standard under the employer's sick leave plan when the employee substitutes any form of paid leave for FMLA leave. The proposed rule DELETED this provision because it conflicted with the employer's statutory right (under 29 USC 2613) to require, as a prerequisite to FMLA leave for a serious health condition, that the employee provide a medical certification to substantiate the serious health condition. The final rule adopts the proposed rule."
So under the Final Regs, the employer has the right to ask for certification even if the employee is using PTO concurrently for FMLA leave.
[/quote]
But the topic here is not about allowing the use of paid leave concurrent with FMLA, it's about forcing paid leave usage concurrent with FMLA. Allowing, at the employee's option, was never a problem.
I realize that was not the original topic and the postings got off track of it, but you referenced both the old regs and the new regs regarding this and I wanted to clarify it for everyone since you alluded to it, but didn't come right out and state what the final regulations did.
And I did go back and edit my response to include the note about the state of California being the only one that I know of where you can NOT force use of PTO before unpaid time. As far as I know that is the only state that allows the employee control over their paid timeoff vs leave time.
Whether this was part of the original topic and posting or not, I think this is a good point as to the changes with the new regulations. I have been trying to read as much as I can on the new regs versus the old regs. So if I am understanding you correctly, an employer can now require (as long as allowable by state law) an employee to use PTO and still request all of the same certifications they would have requested if using unpaid leave?
I know that only time will shake a lot of this out, as we will see some court cases that will help give interpretations to many of the changes.
I have been trying to follow this post because we are currently updating our Policy and Procedures Manual.
I am having some difficulty with this and hope someone can point me in the right direction.
- Under the new FMLA regs if we require that PTO be used concurrently with FMLA we can ask for medical certification?
- If we require
I have been trying to follow this post because we are currently updating our Policy and Procedures Manual.
I am having some difficulty with this and hope someone can point me in the right direction.
- Under the new FMLA regs if we require that PTO be used concurrently with FMLA we can ask for medical certification?
- If we require
that PTOI have been trying to follow this post because we are currently updating our Policy and Procedures Manual.
I am having some difficulty with this and hope someone can point me in the right direction.
- Under the new FMLA regs if we require that PTO be used concurrently with FMLA we can ask for medical certification?
- If we require
thatI have been trying to follow this post because we are currently updating our Policy and Procedures Manual.
I am having some difficulty with this and hope someone can point me in the right direction.
- Under the new FMLA regs if we require that PTO be used concurrently with FMLA we can still ask for medical certification?
- If PTO is required to be used concurrently with FMLA does that mean that we have to require PTO for a non-FMLA leave (example: exempt employee works for 4 hours then goes home due to a non-FMLA issue do we need to require them to use PTO for the other 4 hours not worked?)
- Are there any other issues with requiring PTO to be used concurrently with FMLA leave?
Under the new FMLA regs if we require that PTO be used concurrently with FMLA we can still ask for medical certification?[/quote]
Yes. FMLA has two requirements. A qualifying event as defined in FMLA regs and the time that qualifies the event. Having a concurrent use of time policy does not negate the required medical certification for a serious health condition.
[quote]- If PTO is required to be used concurrently with FMLA does that mean that we have to require PTO for a non-FMLA leave (example: exempt employee works for 4 hours then goes home due to a non-FMLA issue do we need to require them to use PTO for the other 4 hours not worked?)[/quote]
That would be a matter of what your policy states is required use of time for an absence. If an employee here went home after working four hours we use our absence policy to assign the use of PTO. Example; if the person went home sick. At this point there is no FMLA trigger, the absence would be sick time. We would monitor this to see if it becomes an FMLA trigger but it would not generally be so at this point. If they had a family emergency then that will become personal leave or annual leave if there is no FMLA trigger. Any non-FMLA absence would be covered under our absence policy.
[quote user="Redbudpt"]Thank you so much Cappy. As of right now if an exempt employee leaves after working 1/2 a day (4 hours) then we do not charge the other 4 hours as PTO. I am thinking that with the new FMLA regulations we should probably be making them use PTO.[/quote]
I don't want to send a wrong message but you have to be careful about deductions with exempt employees. You may deduct from an employee's alloted sick time per your policy. Yes, FMLA time may be ducted in less than 1 full day. However a decuction would not be counted as FMLA time unless there has been a qualifying event that has already been through the FMLA required forms and certification process. All absences, even if they are sick leave, are not FMLA absences.
Thanks for the info, Cappy.
I think that's the first thing I'm aware of that actually swung in favor of the employer and was substantial.