An important provision of the new FMLA regulations permits employees to substitute paid leave for unpaid FMLA. This is a major departure from the previous regulations, which permitted an employer to prohibit the use of paid vacation by employees on FMLA.
According to the U.S. Department of Labor, an employee can substitute paid leave benefits for unpaid FMLA, as long as the employee follows the employer’s terms and conditions regarding those benefits. (However, the terms and conditions should be previous established, preferably in writing, and must be non-discriminatory.) The employer has a responsibility to inform employees of the terms and conditions of the paid leave policy or policies.
For example, a company may have a policy that paid vacation must be requested in writing at least 4 weeks in advance. When Jennifer goes into labor on January 15, she can immediately take FMLA. However, she will need to comply with the usual company policy and request her paid vacation 4 weeks in advance. Jennifer may request that her paid vacation begins on February 15, in compliance with the employer’s policy. For the week beginning February 15, Jennifer will be both on vacation and on FMLA leave.
The provision to substitute paid leave does not extend an employees total leave under FMLA. Suppose John has 2 weeks of paid vacation. He is entitled to use those two weeks while he is on FMLA. However, John is not entitled to 2 weeks of vacation plus 12 weeks of unpaid FMLA, for 14 weeks total. Instead, he is entitled to 2 weeks of paid vacation/FMLA, plus an additional 10 weeks of unpaid FMLA, for a total of 12 weeks off.
According to the Society of Human Resource Management experts, if an employee fails to follow the employer’s procedures for requesting vacation or paid time off, the employee is still entitled to the time off, unpaid, under FMLA.
