QUESTION

When an employer is subject to FMLA, and the employee is eligible for FMLA leave, should FMLA run concurrently with his vacation and sick leave? Or should the employee first exhaust his sick and vacation leave before the 12-week clock starts on FMLA? 

ANSWER

According to the FMLA regulations (29 CFR § 825.207), an employee may choose, or an employer may require employees, to “substitute” (run concurrently) accrued paid leave, such as vacation and sick vacation leave, to cover some or all of the FMLA leave period.

An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. If an employer decides that it will require employees to use their accrued and unused vacation and sick leave during their approved FMLA leave, they must notify employees that their paid time off will run concurrently with unpaid FMLA leave.

Employees may use paid leave under circumstances which do not qualify for FMLA leave, however if an employee’s leave qualifies under FMLA, that time off should be counted against the employees’ FMLA leave entitlement. In other words, requiring an employee to exhaust their vacation and sick leave prior to the start of the FMLA leave entitlement would result in an employee being off from work longer than the designated FMLA leave requirement since the vacation and sick leave would not count toward the leave entitlement permitted under FMLA. 

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