DID YOU KNOW: Paid time off can be substituted for unpaid FMLA leave?

Kyle was looking forward to his summer trip to the Galapagos Islands. He had saved up three weeks' worth of paid time off for the trip. His plans were finally coming together. What he hadn't planned for was contracting pneumonia. As Murphy's Law would have it, the pneumonia sidelined his trip. Instead of the tropical beauty of an exotic island, Kyle was looking at the walls of his apartment and FMLA forms. He learned that the FMLA provided for unpaid leave, but he still had bills to pay, so he wondered how he could go about continuing his pay during the leave.

As the weather warms up, employees are undoubtedly thinking about taking some time off. If one of those employees with accrued paid time off were to need FMLA leave, he might want some income during his leave. When it comes to FMLA leave and accrued paid time off, employers have some considerations, including the "substitution" provisions.

Generally, an employee is entitled to "substitute" accrued paid time off for unpaid FMLA leave. Accrued paid time off could include vacation, sick leave, or simple paid time off (PTO). For simplification, we'll use the term PTO for all of these types of paid time off. Of course, if an employee has no accrued PTO, he would not be entitled to such a substitution.

The term "substitute" can be a bit confusing. The employee does not use PTO in lieu of FMLA leave; they actually run concurrently. While an employee is "burning" FMLA leave, he or she is also burning PTO. Often, employers will require employees to use any PTO before applying the FMLA protections. If, however, the employee is eligible and the reason for the leave qualifies, all of it would be FMLA leave, regardless of whether the PTO is being used or not. Failing to provide the FMLA's protections during a qualifying leave period could risk an interference claim.

If an employee exhausts his or her PTO during a leave, the remainder of the leave would be unpaid, but still protected by the FMLA.

If an employee does not wish to use PTO during FMLA leave, you may require him or her to do so. Such a requirement, however, should be included in a related policy to avoid inconsistent application.

Your policies regarding the use of the PTO would also apply. When an employee chooses to use PTO (or your require it), you must inform the employee that he must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. If an employee fails to satisfy the requirements for paid leave, he is still entitled to unpaid FMLA leave.

If the employee does not use PTO during FMLA leave, he would have it available at the end of the FMLA leave.

Until Tomorrow! 

April D. Halliburton, BSBA, MBA

Founder, CEO, HR Strategist, Problem Solver/Visionary

April D. Halliburton Founder/CEO, All-4-HR & Business Solutions p:313-355-3061 | e:all4hrbiz@gmail.com | w:http://www.all4hr.net |a:26310 Norfolk Street, Inkster, MI 48141