Coordinating FMLA Leave With Other Types Of Time Off

February 27, 2017

As an initial matter, employers need to recognize that there are a number of federal, state, and local laws governing leave. In addition to the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and Title VII can impact employees’ leave rights. State and local laws, including workers compensation laws, may impose requirements related to an employee’s absence from work due to an injury, disability, or illness.

When multiple laws apply, federal regulations direct an employer to provide leave under whichever statutory provision provides the greater rights to the employee.

It can be confusing to coordinate FMLA leave with the ADA’s requirement to provide reasonable accommodation to employees with a disability. The two laws are triggered by different circumstances and qualifications, even though both may apply to a particular circumstance.A “serious health condition” that qualifies for protected leave under the FMLA may or may not be a “disability” requiring reasonable accommodation under the ADA. Leave related to an employee’s own medical condition may be required by the ADA, the FMLA, and state or local laws, but leave requested in connection with the serious medical condition of an employee’s family member is only required by the FMLA and some corresponding state laws. The FMLA requires 12 workweeks of leave in a 12-month period, while an employee with a disability may be entitled to more than 12 weeks of unpaid leave as a reasonable accommodation under the ADA. The best approach is to independently evaluate the requirements of each applicable law, establish what is required to comply, and then assess how the requirements overlap.

In addition to navigating federal, state, and local regulations, covered employers must integrate FMLA requirements with their own leave and attendance policies, such as policies on paid time off (PTO), vacation, sick, short-term disability, and long-term disability. A sick or PTO policy is an obvious place to start, but make sure to consider whether conflicts lurk in policies such as those governing attendance, leave requests, leave scheduling, calling-in absences, and documentation of leave requests. Although an employee generally must comply with company policies when requesting FMLA leave, such policies must be in compliance with the law’s requirements. A company prohibition on using PTO during the busy season, for example, may conflict with an employee’s need to take leave under the FMLA. In such cases, the company policy may need to be modified, or be subject to exceptions, to comply with the requirements of the FMLA. An employer’s requirements for documentation of the reason for taking sick leave may not track the documentation requirements of the FMLA. Many employers have chosen to add a disclaimer to their leave policies, stating that conflicts between policies and federal, state, or local laws will be resolved in favor of compliance.

Employers also need to understand if and when employees can be forced to use up accrued paid leave while on FMLA leave. The FMLA generally permits employers to require the use of accrued paid time off during a leave. This means that the employee receives pay pursuant to the employer’s paid leave policy during a period of otherwise unpaid FMLA leave. There is one exception, however: employers may not require employees who are eligible for FMLA leave due to their own “serious health condition” to use accrued paid time off if the employee also qualifies for disability benefits under an employer disability plan or a state disability insurance plan.

Finally, the existence of short or long-term disability benefits does not alter a covered employer’s obligations to abide by the FMLA, and employers cannot refuse to allow FMLA leave just because STD and LTD are available.Employers must also make sure that third-party administrators processing leave requests understand and comply with the FMLA.

The FMLA requires employers to maintain an employee’s health insurance coverage during FMLA leave, but employers are permitted to suspend the accrual of benefits such as PTO as long as they carry out any suspension in a non-discriminatory manner and the suspension policy applies to employees on all forms of leave.