In previous articles, we covered the four calendar methods for tracking nonmilitary caregiver Family and Medical Leave Act (FMLA) leave. One way was the variable or rolling method that is used to minimize or avoid the stacking of leave. However, this raises the question of whether or not employees can substitute leave or “make up” FMLA leave.
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Substitution of paid leave
Generally speaking, employees are not entitled to “stack” all the different kinds of leave available to them under the FMLA, other laws, and your leave policies. But to prevent them from doing so, you must give them advance notice that you require them to use other types of leave concurrently with their FMLA leave.
Of course, if your state’s laws, a collective bargaining agreement (CBA), or your own policies offer more generous leave provisions than the FMLA, you must honor them, although you can require them to run concurrently with FMLA leave.
Your handbook should also specifically state whether you require paid sick, vacation, or personal leave to run concurrently with FMLA leave. This information is also required to be provided in the Designation Notice.
Making up FMLA leave
The FMLA’s regulations do not provide unequivocal guidance as to whether an employer can maintain a policy that requires or even encourages employees to “make up” FMLA leave. FMLA leave is unpaid, so employees who are absent from work because of FMLA leave may want to make up the time so that they can receive a full paycheck.
The FMLA’s regulations clearly prohibit an employer from both discouraging or interfering with the exercise of FMLA rights and discriminating against an employee that exercises his or her right to FMLA leave.
As a result, it is inadvisable to require an employee to make up FMLA leave, as such a requirement would most likely be perceived as discouraging or interfering with the exercise of FMLA rights and perhaps even discriminating against the employee that exercises those rights.
The FMLA requires that covered employers provide privileges and benefits to employees who take FMLA leave in the same manner they offer benefits to those on non-FMLA leave. Therefore, if an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privileges—this due to the fact that employers must provide benefits to employees on FMLA leave in the same manner offered to those on non-FMLA leave.
If employees are allowed to make up missed FMLA time, an employer may still count that time against the employee’s FMLA allotment, as long as the employer has clearly articulated in its policy that makeup time may be used only to recover lost wages, not to save FMLA time.
The policy should clearly state that regularly scheduled work missed because of FMLA leave will still be counted toward the employee’s FMLA entitlement, and makeup time is allowed to compensate for lost wages if the FMLA leave was unpaid. If the FMLA leave was paid, (i.e., vacation or sick leave was used), makeup time should be prohibited.
Finally, any policy should clearly state the criteria for making up lost time, such as when the makeup time must be worked, and proper reporting procedures.