Carefully Craft Policy to Avoid Paid-Leave ‘Stacking’

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in FMLA Guidelines,Human Resources

Q. A pregnant employee eligible for FMLA wants to take the 12 weeks of leave. Our leave policy says an employee on FMLA must first use his or her sick, vacation and personal leave, in that order, before the leave is unpaid. In this case, the employee has enough sick leave for the 12 weeks. But should she be allowed to use sick leave for the entire 12 weeks? Is this in our best interest? —M.P., Texas

A. Under the FMLA, an employee's right to 12 weeks of leave for birth is set in stone. That leave generally must be taken within 12 months after the birth. You can insist that employees first use their paid leave and count that toward their total FMLA time. So, in this case, the employee's 12 weeks of sick time could run concurrently with her FMLA time. (Such a policy prevents employees from “stacking” paid leave on top of unpaid FMLA leave, which gets them back to work faster.)

The FMLA isn't the real source of your problem. Your problem is an unusually generous sick leave policy. Most employers (especially in the private sector) don't have sick leave policies that let employees accrue 12 weeks of paid leave. Consider amending your sick leave policy so that you either limit the amount of sick leave that employees may accrue or offer a cash payout for unused sick leave at year-end.

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