Track intermittent leave meticulously when you offset FMLA time with paid leave

Employers are allowed to substitute paid time off for unpaid FMLA leave. Doing so prevents employees from taking off all their accumulated paid leave and then receiving another 12 weeks of unpaid FMLA leave.

But employers have to let employees know that’s what they are doing. And that can get tricky if the employee is taking intermittent leave for a chronic condition, plus leave for other personal needs such as vacation or mild illness.

That’s why someone in HR should review every leave slip. The goal: to determine whether the latest absence is related to the chronic condition, some other serious health condition or any other non-FMLA need. Keep a tabulation showing total FMLA usage for the year.

Advice: Also, be sure to let the employee know whenever you subtract paid leave from his or her FMLA balance.

Recent case: Robert Thornberry worked as a police officer for the city of Hobart until he was fired for not reporting to duty. Thornberry suffered from cluster headaches, which meant that periodically he didn’t show up for work. Between vacation, holiday, personal and sick leave, the city allowed each employee 82 days of paid leave per year. Thornberry used them all up.

The question facing the court when Thornberry sued for FMLA violations was whether the city could show it had warned Thornberry that it was subtracting time from his FMLA entitlement every time he used paid leave for the headaches.

The city had warned him when it first accepted his certification for intermittent leave that it would, and then warned him again as his leave balance slipped.

Thornberry argued that the city had to show that each paid absence was for an FMLA reason and give him a tally after each absence. The city hadn’t done that.

The court said that would have been preferable, but failing to do so didn’t hand Thornberry a win. The city easily showed that, even if some paid time was for other personal reasons, Thornberry still used all his FMLA time. (Thornberry v. City of Hobart, No. 45A03-070-CV-351, Court of Appeals of Indiana, 2008)