Q. Our employee handbook provides that employees who takemust first use any available paid-leave time, including vacation, sick time and personal time, as part of their leave. I have recently heard that there may be limitations on an employer’s ability to require an employee to substitute his paid-leave time for unpaid FMLA leave. Can you clarify this?
A. An employer may require an employee to use available vacation leave, personal leave orfor FMLA leave where the leave is being taken for the birth or adoption of a child or to care for a family member with a serious health condition.
An employer may also require an employee to use any accrued medical or sick leave, in addition to vacation, personal or family leave, for the employee’s own serious medical condition or to care for a family member with a serious health condition.
Thus, an employer can only compel the use of paid sick time when the leave involves the employee’s own, or a family member’s, serious health condition.
The regulations interpreting the FMLA specifically provide that when the employee is receiving state workers’while on FMLA leave, the employer cannot require the employee to use his or her available paid-leave time. Furthermore, employers cannot require employees to substitute available paid-leave time for the unpaid FMLA leave if the leave is covered by payments from plans covering temporary disabilities.