After resignation, can I still utilize an intermittent FMLA benefit?

After resigning almost 4 weeks ago, I have had to use intermittent sick time for a previously approved FMLA of which I qualified for, was approved and also have a certification of healthcare provider form on file allowing me the time I need. I have given the employer notice as required by policy, but the supervisor feels that I should no longer be employed there. I have taken 2 days of FMLA time this week, and will need more before my final day. Will I get vacation time that is owed to me by policy, if I resigned 'in good standing', yet they choose to let me go earlier? (i.e. termination) Thank you for your insight.

1 answer  |  asked Oct 6, 2010 09:46 AM [EST]  |  applies to Connecticut

Answers (1)

Daniel H. Schneider
Dear Sir or Madam:

In general I do not know of any reason, that in of it self, providing your employer with a notice of your resignation should affect your right to utilize FMLA leave from the time that you provide notice until the resignation date in your notice. Now, once you give your resignation notice many employers will not allow an employee to work their notice period, which the employer can do. If the employer does not generally allow anyone to work their notice period then it can do that to you, even if you were on intermittent FMLA, but it cannot single you out for your use of FMLA leave in determining not to allow you to work your notice period.

Your notice of resignation may affect the damages that you could recover for an FMLA violation, as it will be argued that you employment would have ended anyway by the effective date for your termination. As far as vacation pay, the requirement to pay it on termination depends upon the employer's policies, but they should not be able to discriminate against you for using FMLA leave. On the other hand, an employer is allowed to require that an employee's FMLA leave be paid by accrued vacation or sick leave instead of being unpaid, if the employee has available leave.

If you want to discuss your particular situation in more detail, please feel free to contact me by telephone (203) 874-0030. You can also reach me by e-mail at Please note that I do not charge for such initial consultations.

Very Truly Yours,

Atty. Daniel H. Schneider
Schneider Law Firm, LLC
(203) 874-0030
Milford, CT

I would be willing to speak to you

posted by Daniel H. Schneider  |  Oct 6, 2010 10:20 AM [EST]

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