You (not the employee) determine FMLA leave

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in FMLA Guidelines,Human Resources

Q.  At a recent FMLA seminar I attended, the speaker said that employers have the responsibility to ask employees if they want their absences applied to their 12 weeks of available FMLA leave. I understand that we can run FMLA leave concurrent with paid sick leave, but what if an employee doesn’t want to use up his FMLA leave and has other paid or unpaid leave available under our company leave policy? —J.G., Ohio

A. You should ask for your money back from the seminar sponsor. Although FMLA leave is unpaid, the regulations say that an employee may elect, or an employer may require, that accrued paid leave be substituted for FMLA leave. In other words, employers are permitted to require employees to exhaust paid leave time that's available (i.e., sick, personal and vacation time) concurrently with FMLA leave.

Note: You should include this as a requirement in your FMLA policy. That will prevent abusive employees from “stacking” paid leave on top of FMLA leave (i.e., taking a few weeks of paid leave and then taking 12 weeks of FMLA leave). 

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