A recent opinion letter from the U.S. Department of Labor says businesses may NOT allow employees to use paid sick leave, vacation time or other types of leave before the time off provided under the federal Family and Medical Leave Act (FMLA), even if that’s what employees prefer to do.
Instead, employees who need time away from work for qualified medical and family reasons must use the FMLA concurrently—not after —any paid sick time or vacation time they have earned with their employer. In other words, employees cannot tack on a 12-week unpaid FMLA leave at the end of any paid time off they are permitted, the U.S. DOL wrote in its opinion letter March 14.
“When an employer determines an employee needs leave because of an FMLA-related reason, that leave must count toward his or her FMLA allotment, even if the employee requests otherwise,” explains Katie Clarey of HR Dive. “That means that employees cannot, for example opt to take employer-provided sick or vacation time first; FMLA leave would have to run concurrently.”
The 1993 FMLA requires covered employers to provide employees with job-protected unpaid leave for qualified medical and family reasons. These include pregnancy, adoption, foster care placement of a child, personal or family illness, or family military leave. The statute is one of eight separate federal and state laws that either guarantee job-protected unpaid leave time or partial wage replacement for New Jersey workers. The interplay of these laws is often a source of confusion for HR managers.
