Is leave taken under the Family and Medical Leave Act (FMLA) paid or unpaid
leave? This is a question that is frequently asked and the answer is not
necessarily a simple one.
Under the FMLA, employers are required to grant up to 12 weeks leave per 12
month period to eligible employees:
· for the birth of a son or daughter, and to care for the newborn
child;
· for the placement with the employee of a son or daughter for
adoption or foster care;
· to care for the employee's spouse, son, daughter, or parent with a
serious health condition; and
· because of a serious health condition that makes the employee unable
to perform the functions of the employee's job.
There is no requirement under the FMLA that this leave be paid but there are
circumstances under which an employee can substitute paid for unpaid leave or
the employer can require the employee to substitute accrued paid for unpaid
leave.
If an employee has accrued sick leave, personal leave, vacation, or other
such leave, the employee may substitute appropriate leave for unpaid leave.
However, this does not give the employee the right to substitute paid leave that
is inconsistent with the employer's leave policy. For example, if the sick leave
policy allows use of sick leave for the employee's illness or the illness of the
employee's child, the employee could use sick leave for his own or his child's
serious health condition that qualifies for FMLA leave. If the same policy did
not allow use of sick leave for the illness of a parent, the employer would
still be required to grant FMLA leave for the serious health condition of the
employee's parent but would not be required to grant paid sick leave in
substitution of any or all of the employee's unpaid FMLA leave. The employee
could still use other types of leave, such as accrued vacation, that would not
be inconsistent with the employer's policies.
If an employee does not choose to substitute accrued paid leave for unpaid
FMLA leave, the employer may require the employee to substitute accrued paid
leave for unpaid leave. To ensure consistency of treatment of employees, the
employer should only require an employee to substitute leave that is appropriate
with the reason for the employee's FMLA leave.
If neither the employer or employee elects to substitute paid for unpaid
leave, the employee remains entitled to any accrued leave the employee has at
the beginning of unpaid FMLA leave.
If either the employer or employee elects to substitute paid for unpaid FMLA
leave, the paid leave counts against the employee's 12 week leave entitlement
under FMLA. The maximum obligation an employer has under FMLA is 12 weeks of
leave per 12 month period either paid, unpaid, or a combination of both. To help
protect the employer against an employee's possible entitlement to 24 weeks
protected leave under FMLA, it is important that the employer choose a specific
method of measuring the 12 month entitlement period (See the article en-titled
"FMLA-What's Your Year" in Personnel Pointers vol. 1, no. 2 or call
TAC's Personnel Assistance staff to get a copy).
While most paid leaves can be substituted for unpaid leave under FMLA, there
is one type of leave that cannot be counted as part of FMLA leave. Under the
Fair Labor Standards Act (FLSA) public sector employees can be paid for overtime
in the form of compensatory time at one and one half times the overtime worked.
This earned compensatory time, however, cannot be counted against an
employee's FMLA leave entitlement. For example, if an employee is out for an
FMLA leave qualifying reason, he may elect to use FLSA compensatory time for the
absence. In this situation, the employer cannot count the absence against the
employee's FMLA leave and the employee is still entitled to his full 12 weeks
leave under FMLA.
Full information on the requirements of the Family and Medical Leave Act is
available from the U.S.
Department of Labor's Wage and Hour Division.