FMLA basics are confusing enough. And then each aspect—substitution, bonuses, holidays, etc.—seems to have its own tricky twist. Let’s let the “FMLA Bible” sort it out.
Substitution Required? Notice Required
Employees may choose to substitute accrued paid leave for FMLA, or the company can require it. (Many do.) However, it’s not quite as simple as that.
First of all, the employer may require that an employee comply with its established leave policies and procedural requirments for use of paid leave, even if they are more (or less) stringent than the FMLA’s rules.
However, to institute this requirement, the employer must inform the employee of the policy, usually on the federal Form WH-381 (Eligibility and Notice of Rights and Responsibilities).
If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave.
Some examples of established employer paid leave policies that would most likely be acceptable under the 2009 final FMLA rule are:
- Requiring vacation to be used in minimum increments
- Restricting use of vacation to certain times of year
- Limiting use of sick days to employee’s own health condition, not for family
- Limiting use of sick days to illness, not preventive or well check-ups
- Requirements for advance notice or approval in order to use such paid time benefits
Similarly, there are tricky details concerning most aspects of FMLA leave. For example:
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Disability Leave Is Paid, So No Substitution Requirement
Leave taken pursuant to a disability leave plan is considered to be FMLA leave for a serious health condition and counted against the leave entitlement permitted under FMLA, so long as the disability qualifies as a “serious health condition.” The employer must give the employee all required notice and designate the leave as FMLA-eligible in order to “count” it against the employee’s leave entitlement.
However, because leave taken under a disability benefit plan is paid (at least in part), an employer may not require the employee to substitute accrued paid leave during disability leave. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan provides only replacement income for two-thirds of an employee’s salary.
Workers’ Compensation
Similarly, time taken off from work due to an injury covered under a state workers’ compensation program may be counted against the employee’s FMLA leave entitlement if the injury is a “serious health condition.”
Because the workers’ compensation absence is paid (at least in part), the employer may not require the substitution of accrued paid leave. And, again, employers and employees may agree, where state law permits, to have paid leave supplement workers’ compensation benefits.
When workers’ compensation benefits end, the employee may elect or the employer may require the use of accrued paid leave.
If the healthcare provider treating the employee for the workers’ compensation injury certifies that the employee is able to return to a light duty job, but is unable to return to the same or equivalent job, the employee may decline the employer’s offer of a light duty job. As a result, the employee may lose workers’ compensation payments, but is entitled to remain on unpaid FMLA leave until the employee’s FMLA leave entitlement is exhausted.
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Holidays/Company Closings During FMLA Leave
For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within a full week taken as FMLA leave has no effect; the entire week is counted as a week of FMLA leave.
However, DOL states, if an employee is using FMLA leave in increments of less than 1 week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
Similarly, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for 1 or more weeks (e.g., a school closing 2 weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.
In tomorrow’s Advisor, more in FMLA intricacies, plus an introduction to the guide many call the “FMLA Bible.”