Keeping Things Straight with Employees – Family and Medical Leave Act
From: Felicia
To: BobM@mckenziehr.com
Subject: Ask Bob
NAME: Felicia
COMPANY: confidential
TITLE: Account Assistant
QUESTION: My employer is counting vacation time earned towards FMLA time. My employer is also telling employees that if they take the entire 12 weeks for maternity leave, return to work, but have a doctor’s appointment for something unrelated to their FMLA, they can be terminated. I feel this is a misrepresentation of the FMLA regulations. I have researched the DOL website, but situations such as this are not “written out.”
Please help.
PS: You taught a class at FCCJ that I was in regarding SHRM. I have been on your mailing list ever since. I hope this email is okay!
Best Regards,
Felicia
RESPONSE:
Felicia,
To preface my response, you must understand that the FMLA is probably THE most complicated piece of employment legislation ever passed. Most managers of the companies that I run into do not understand it and deem it as a threat to running the business. Some of the problems associated with FMLA are the high number of employees who have learned to “work the system,” thereby causing doubt of the employees’ intentions when using FMLA. With that said, here are some of the facts regarding your question.
It is perfectly OK for the company to require employees to exhaust their sick and vacation time while on FMLA. The reasoning is that an employee who takes 12 weeks off for FMLA and then has another two or three weeks of vacation and sick time will be off over 15 weeks a year. This is actually a practice we recommend to our clients. Just an FYI, I once worked for a company that did not require use of sick and vacation time. Many employees had over five weeks of vacation and 10 days of sick time. By the time they used all of their days off, they missed 17 weeks of work. Many employees took advantage of this and it caused the company a lot of hardship in operating its business.
As for the taking time off after FMLA, understand that any FMLA leave cannot be counted against the individual as time off. Therefore, if the company has a policy or practice on what constitutes as excessive absenteeism, the time spent on FMLA should be counted the same as if the employee were at work. Here’s the issue that may occur from your example. An employee who did not take FMLA goes to a doctor’s appointment and nothing is said to the individual. Then the employee who used FMLA has a doctor’s appointment and was given a hard time about it. This could be deemed a violation of FMLA because the FMLA absence is being held against that person.
This could be problematic for the company. If you are in an HR position, get educated on FMLA and be sure to inform the management of the company’s risks of their practice of threatening employees who used FMLA. After that, the decision is theirs to make. I hope this answers your question.
Let me know if I can help in any way.
From: Felicia
To: bobm@mckenziehr.com
Subject: Re: RE: Ask Bob
Thanks Bob…it makes sense why my company does this now…there is still a gray area on how they do things but I believe I understand that they are following the policy. This is a really complicated issue to follow!
I appreciate you getting back to me….have a great day!
Felicia