Q. An employee has asked for paid
A. Under the new final , if the employer has a paid leave policy, then its terms and conditions must be applied and followed by an employee substituting any form of accrued paid leave (such as paid vacation, personal leave, , paid time off or sick leave) for unpaid FMLA leave.
Therefore, in your case—where your policy requires the use of paid leave in a time increment larger than the amount of FMLA leave the employee requests to be substituted with paid leave—the employee must take the larger increment of leave specified in your policy. Additionally, the total amount of leave taken will be charged against the employee’s FMLA entitlement.
It is important to note, however, that—as a safeguard for employees—the new rules require the employer’s notice of the employee’s eligibility for FMLA leave must also make clear that the employee remains entitled to unpaid FMLA leave (for example, the smaller increment of time) even if the employee chooses not to follow the employer’s paid leave policies (such as the required larger increment of paid leave).
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