Q. One of our employees will be out for medical treatments for four to six weeks. He doesn’t want to use, just his accumulated sick and vacation days. We’re afraid he’ll use them up and then demand 12 weeks’ leave. Can we make him use FMLA leave first? — B.B., Colorado
A. This is the employer’s decision, not the employee’s. Employers can designate all qualifying time as FMLA leave and count that time against the employee’s 12-week leave entitlement—even if the employee would rather decline FMLA leave. As long as the illness or injury qualifies as a “serious health condition” and the employee is otherwise entitled to FMLA leave, the employer is responsible for designating the employee’s leave as FMLA-qualifying.
At the same time, the FMLA allows employees to elect—or employers to require the employee—to use accrued paid vacation leave or, subject to certain restrictions, sick leave, for some or all of the FMLA leave. Employers can count this paid leave against the 12-week FMLA leave entitlement—in effect, running the two leaves concurrently.