Do i have to use up all my sick & vacation time before I can use FMLA time?

I will be caring for my elderly mother after she has surgery at the end of the month. I was told at my workplace that I MUST use all my sick time and all my vacation time before I can use any FMLA hours. Is this correct? I can undedstand using the sick time but since I don't get paid for FMLA time, why can't I use it (when it qualifies) and save my vacation time?


1 answer  |  asked May 8, 2011 8:48 PM [EST]  |  applies to Massachusetts

Answers (1)

Kevin McGann
Sick time and FMLA leave are two different benefits and regulated from two different institutions. Sick time use is regulated by your employer's (written) sick-time policy. FMLA leave is a federal government promise that in these circumstances you can be out of work (unpaid) without losing your job.

The employer has the right to enforce it own sick leave policy. In this case, according to your facts, you must take the paid leave first.

A VERY IMPORTANT element in the relationship between employer sick leave and FMLA is whether the employer requires you to "substitute" sick leave for part of the FMLA leave. The employer can do one of two things:
1. Require you to take sick leave as part of your 12 week FMLA allowance. You would get paid for part of the 12 weeks, but exhaust all of your leave after 12 weeks; or,
2. Require you to take all of your accrued sick leave first, and then you may apply for unpaid FMLA leave of 12 weeks.

Check with your employer about which of these they mean.
These rules are published in the CFR Federal regulations at 825.207 Substitution of paid leave.

posted by Kevin McGann  |  May 9, 2011 08:29 AM [EST]

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