Q. If an employee is onpaid sick leave, can we stop her from accruing sick leave while out?
A. The FMLA itself does not require an employer to allow sick leave, vacation leave or other leave to continue to accrue while an employee is out on. That is, the employee does not have a right under the FMLA to an entitlement for the continuation of the accrual of that leave while on FMLA leave. Nevertheless, Section 825.215(d)(2) of the does grant an employer discretion to permit a continuation of the accrual of leave while an employee is out on FMLA leave, if the employer desires to do so.
You will need to review your company’s current leave policies and determine whether they allow a continuation of sick/vacation leave time accrual during FMLA leave (or any other leave for that matter). If your policies create such an entitlement, the sick/vacation leave for the employee must continue to accrue while the employee is on FMLA leave. Note that if an employee returns from FMLA leave and still has a balance of leave remaining from time off accrued before FMLA leave began, the employee is entitled to have that balance of previously accrued leave reinstated upon return to work from FMLA leave. 29 C.F.R. § 825.215(d)(2).