Carl Crosby Lehmann

Gray Plant Mooty
Minneapolis, Minnesota
www.GPMLaw.com
Carl.Lehmann@GPMLaw.com
(612) 632-3234

Carl has significant experience in advising employers on personnel matters, drafting employment policies and agreements, and litigating employers’ interests in both administrative and judicial proceedings. Carl’s practice includes advising employers in personnel-related matters, including terminations, discrimination and sexual harassment issues, defamation claims, employment and independent contractor agreements, noncompete and confidentiality agreements, wage-hour concerns, voluntary and mandatory affirmative action policies, and insurance issues.

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Q. We have an employee out on a medical leave who is collecting short-term disability benefits. We have also designated the leave as FMLA leave. Our FMLA policy allows us to require the employee to use accumulated paid leave benefits concurrently with FMLA leave. Can we reduce this employee’s paid leave bank for the FMLA time he is taking?

A. No. Under the U.S. Department of Labor’s regulations, because short-term disability benefits are paid, the FMLA’s provisions allowing substitution of accrued paid leave benefits during FMLA leave periods are not permitted. Neither the employee nor the employer may require the substitution of paid leave in these circumstances.

However, under Minnesota law, employers and employees may agree to have paid leave supplement disability plan benefits, such as in the case where a plan only provides the employee with a smaller percentage of replacement income than the employee’s full salary.

Also, many disability plans have a qualification period before benefits become active, and it is permissible to require employees to use paid leave benefits during that period.