Common sense: It’s OK to urge employee to use paid leave instead of unpaid FMLA — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Common sense: It’s OK to urge employee to use paid leave instead of unpaid FMLA

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Most employers try to run unpaid FMLA leave concurrently with other paid leave, such as sick leave. But sometimes, it may be simpler to encourage the employee to just take a few days of paid vacation or personal leave rather than dealing with the FMLA paperwork. That’s OK.

Recent case: Terri sued her em­­ployer for various alleged wrongs, including FMLA violations. She complained that when she had to take time off for FMLA-related reasons, her employer suggested using accrued, paid leave instead of unpaid FMLA leave. She did.

But her lawsuit alleged that encour­­aging her to use her vacation time without counting it against her FMLA leave somehow violated the FMLA.

The court disagreed. First, it said nothing in the law prevents employers from requiring employees to use their paid leave concurrently with unpaid FMLA leave. It follows that not deducting from the FMLA entitlement also doesn’t violate the law, since the employee ends up with the best possible outcome—she receives pay during the absence and still retains her full, unpaid FMLA entitlement in case she needs it later. (Twillie v. Erie School District, No. 13-4011, 3rd Cir., 2014)

Final note: Terri’s other claims were also dismissed. For example, she claimed that she was passed over for a promotion because she is black. It turned out that another employee, also a black woman, got the position and happened to have more specific experience.

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