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July 06, 2011
FMLA Rules on Use of Accrued Paid Time Off

In a BLR webinar entitled "Employee Leaves: A Comprehensive Strategy to Determine Eligibility, Minimize Abuses and Manage Conflicting Laws," Laura Innes, Esq., and Marc Jacuzzi, Esq., partners at the law firm of Simpson, Garrity, Innes & Jacuzzi, PC in San Francisco addressed the use of accrued paid vacation under the federal Family and Medical Leave Act (FMLA).

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  • An employer may require or an employee may choose to use accrued paid time off for any unpaid FMLA leave.
  • It's important to check the limitations of state law. For example, pregnancy disability leaves are treated differently in California. The employee has the option regarding the use of vacation and paid time off.
  • Whenever a state provides better benefits, including an option for the employee, state benefits must be provided. FMLA does not preempt more employee-favorable state laws.
  • Also, where FMLA is paid through Workers' Compensation, State Disability Insurance or even private disability policies, the use of accrued paid time off or sick accounts must be by mutual agreement.

The use of accrued paid sick leave is available only if the leave satisfies the terms of the sick leave policy, i.e., for an employee's own "sickness" (unless modified by statute).

Note that if the employer has no statement in its policies about the use of paid time off, then it's the employee's option. So have a written policy requiring the use of paid time off during leaves of absence.

Marc Jacuzzi, Esq., and Laura Innes, Esq., are partners at the law firm of Simpson, Garrity, Innes and Jacuzzi, PC in San Francisco (www. sgijlaw.com). Mr. Jacuzzi provides representation and counseling for employers in employment law and conducts in-house training programs on a number of employment law topics. Ms. Innes is engaged exclusively in the practice of labor and employment law. She routinely counsels employers regarding HR issues.

Need help staying on top of critical HR and Compensation issues? See all the webinars BLR has to offer.


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