We have an employee who was on an approved FMLA for child bonding for about 2 ½ months. During this time, he worked about 10 hours. His occupation is IT, so he was “on call” while he was off so he could work whenever he was needed. I am reluctant to ding his vacation accrual because of this. Our policy states we suspend accruals during unpaid (FMLA) leaves. But I’m not sure if it should apply to an on call employee who performed work while he was out.
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The primary issue, here, is consistent application of your company policy. If you apply the policy differently to one employee (regardless of whether he/she is an on call employee), but not to others, then you may put yourself at risk of discrimination claims.
Under the FMLA regulations, employers are not required to allow employees to accrue seniority or any employment benefits (such as vacation, sick leave, and holiday pay) during an unpaid FMLA leave. See 29 C.F.R. secs. 825.209(h) and 825.215(d)(2). Thus, if that is your policy, you can (and arguably should) apply it to this employee to ensure consistency in the implementation of the policy.
Further, most employers’ vacation policies specify that an employee must work a certain percentage of a month (often 90%) in order to be eligible to accrue paid vacation, not including time off for paid short-term absences, vacations, or holidays. So, even if the employee worked 10 hours during the 2 ½ month period, he still likely would not be eligible to accrue vacation. Of course, those 10 hours worked should be paid work time and not count as FMLA leave time.
Alternatively, if the employee used paid time for any of the FMLA leave, he should have continued to accrue vacation during the paid leave.