Employee can use up vacation time before taking family leave

The federal Family and Medical Leave Act allows certain workers to take up to 12 weeks of unpaid leave for a medical problem, for the birth of a child, or to care for an ailing family member.

Usually, businesses want to minimize the time that an employee is away from work. So a lot of companies have a policy that requires employees to use up their accrued paid vacation or sick time as part of their 12 weeks of leave.

Suppose an employee has two weeks of vacation, and wants to take off 12 weeks to care for a sick relative. A business that has such a policy could require that the employee take the vacation as part of the leave. The employee would be paid for two of the 12 weeks of leave, but would have no accrued vacation time left when he or she returned to work.

However, a recent decision from a federal appeals court in San Francisco suggests that employees who want more time away from work might be able to obtain it by strategically declining to take family leave.

So in the above scenario, an employee could take two weeks of vacation to care for a sick relative, and then apply for 12 weeks of unpaid leave, resulting in 14 weeks of being away from the job.

Even though the employee is taking the vacation for a reason that would qualify for family leave, the employee could specifically tell the company that he or she is not asking for family leave during the two weeks – but wants to apply for family leave after the paid vacation runs out.

Although the employee is using the initial time off for a reason that’s covered by the family leave law, it doesn’t “count” as family leave unless the employee wants it to, the court said.

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