FMLA: Paid vs. Unpaid Leave

FMLA leave is unpaid time unless the employer voluntarily decides to continue paying the worker during the time off.

You may insist that employees first use up all of their paid time (such as annual leave and sick leave) and count that toward their total FMLA time. If you don’t insist that workers first use their paid leave as part of FMLA, they’re entitled to such leave on top of the 12 weeks of unpaid leave.

If employees take both paid leave and unpaid FMLA leave, the paid time will count against their total FMLA time. For example, if someone takes three weeks of paid leave, he or she is entitled to only nine weeks of unpaid FMLA leave.

Tip: You’re better off having a formal FMLA policy that outlines how your organization will handle leave. A policy that’s uniformly applied leaves less room for charges of discrimination.

Note: Employers aren’t required to give employees notice that their paid leave will be counted toward their 12 weeks of unpaid leave. McGregor v. Autozone, Inc. 180 F.3d 1305 (11th Cir. 1999)