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Employees don’t have to exhaust paid sick leave before taking FMLA

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in FMLA Guidelines,Human Resources

Russell Strickland left work early because his diabetes acted up and affected his vision. Strickland claimed he told his manager and another employee why he was leaving. But the manager said no one was informed. Strickland was fired for insubordination and walking off the job.

Strickland sued, claiming the company violated his rights under the Family and Medical Leave Act (FMLA).

A lower court ruled that because Strickland had not exhausted his paid leave time, he was not entitled to protection under the FMLA. But the 11th U.S. Circuit Court of Appeals reversed the ruling. (Strickland v. Water Works, No. 99-14103, 11th Cir., 2001)

An employee may choose, or a company may require him, to substitute paid leave for any part of the 12 weeks that FMLA guarantees. But if he uses paid leave during that time, that doesn't mean the employee forfeits his FMLA rights. The time is simply running concurrently.

Advice: Requiring accrued leave to run concurrently with FMLA leave is one of the ways you can stem abuse of the law.

Another key point: The burden is on you to determine if leave qualifies under the FMLA. If Strickland did tell the manager he was leaving work because of his diabetes, he would be entitled to reinstatement under the FMLA even though he didn't mention the law specifically.

When an employee tells you that he needs to take unforeseeable leave, it's up to you to decide whether the leave meets the standard for protection. Remember, you can request medical certification for each request for leave due to a serious health condition.

For other tips on stopping FMLA fraud, get our fact sheet, Wipe out fraud and abuse under FMLA. To have a copy faxed to you, call (800) 543-2055. To get it via e-mail, send a message to customer@nibm.net with "Wipe out FMLA fraud" in the subject line.

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