Published Date: 10/06/2014
By John Gupton
The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to take up to 12 or 26 weeks of unpaid leave of absence in a 12-month period for certain medical and family reasons. Employers covered by the FMLA must grant unpaid leave to an eligible employee for any of the following reasons:
- The birth of a son or daughter, and to care for the newborn child;
- The placement of a son or daughter with the employee for adoption or foster care;
- To care for the employee’s spouse, son, daughter or parent with a serious health care condition; or
- Because of a serious health condition that makes the employee unable to perform the essential functions of the employee’s job.
In addition, eligible employees with a spouse, son, daughter or parent who is a servicemember on covered active duty may use their 12-week entitlement to address certain qualifying exigencies. FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember or veteran during a single 12-month period.
The employer may require an employee to use paid vacation or paid personal leave during any FMLA leave. An employer can also require an employee to use sick days as part of any FMLA leave based on a serious medical condition of the employee, spouse, child or parent as long as the employer’s sick pay plan allows pay for these purposes.
The fact that an employee is required to take paid vacation and use paid sick days during an FMLA leave does not extend the entitlement to FMLA leave beyond 12 weeks as long as this is made clear in the employer’s policy. Any paid leave that qualifies as FMLA, including short-term disability and workers’ compensation leave, may be counted as FMLA. Employers should make it clear in their FMLA policy and subsequent notice to employees that such leaves run concurrently. Employers should also be aware of conflicting or overlapping provisions in the Americans with Disabilities Act (ADA).