Ask the Experts: Requiring Use of Paid Leave Before Unpaid Medical Leave

New York Employment Law Update – April 2018
April 30, 2018
California Supreme Court Rules that Determining Worker Status is Easy as ABC
May 1, 2018

Question: Can we require employees to use their vacation and sick time at the beginning of an approved medical leave of absence?

Answer: Generally, an employer may require employees to exhaust their paid time off when a medical leave, such as that under the Family and Medical Leave Act (FMLA), is unpaid. When not required, employees may choose to use their paid time off, vacation, or sick pay benefits to maintain income for part of their leave. Whether using paid leave or not, leave taken for an FMLA-qualified reason is job-protected.

If an employee is receiving any wage replacement benefits (such as benefits paid under a disability plan or workers’ compensation) during an FMLA leave, the employee generally may not use, and the employer may not require the employee to use, any accrued or accumulated paid benefit time. There are exceptions some states, where employees may be allowed to combine workers’ compensation or disability plan benefits with paid time off benefits to further supplement income while on leave.

Exhaustion of paid leave is usually allowed where employers extend leave as an accommodation under the Americans with Disabilities Act (ADA) or comparable state laws.

As paid sick leave laws continue to be mandated in states and localities, be sure to check your state and local laws before drafting policies that require employees to use their paid leave. In all cases, your policies regarding use of paid time during medical leaves of absence should be clear and understandable. A best practice is to have all policies regarding leave in your employee handbook and available to all employees.

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ThinkHR customers can download a comprehensive, regularly-updated, Paid Sick Leave by State and Locality chart and access an Employee Leave Toolkit full of templates, forms, and policy language, by logging in to Comply.

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