FMLA Question

[hamikl94]

New York

My employer is currently, I believe, in violation of the FMLA law.

As my employment contract currently states, we receive 20 sick or personal days per year. It is not specified how many are sick and how many are personal. My employer, last year, decided to change their interpretation of the FMLA law and at currently only allows a woman to take 6 weeks of paid leave using banked personal/sick days following the birth of a child. Men are not allowed to take any paid days, and adoptive or foster parents are not allowed to take any paid days. This seems contrary to the section in FMLA that discusses that the use of personal days during FMLA is at employee, not employer discretion. It states that an employer may force an employee to use personal days during the duration of FMLA, but cannot prevent them from doing so. At current, men and all non-birth parents are not being permitted to use any paid days at all during the duration of FMLA. My employer is blaming that this is because the employee contract states that there is to be no paid leave for child rearing, and that the locally negotiated contract overrides the federal law. Can anyone help me out here? Thanks.

 

[PayrollHRGuy]

The Federal FMLA does not require ANY paid days of leave.

Federal law doesn't require employers to have paid days off at all. The locally negotiated contract isn't overriding federal law because there is no law on the issue.

 

[hamikl94]

The Federal FMLA does not require ANY paid days of leave.

Federal law doesn't require employers to have paid days off at all. The locally negotiated contract isn't overriding federal law because there is no law on the issue.

The federal law states that employers may force OR employees may choose to use paid personal, family, or vacation days for the duration of the FMLA. It also specifically states that employers may not disallow employees from using accrued personal or vacation time during the course of the FMLA. Doesn't this then indicate that my employer is breaking the law by specifically not allowing employees to use paid personal days?

 

[Zigner]

The federal law states that employers may force OR employees may choose to use paid personal, family, or vacation days for the duration of the FMLA. It also specifically states that employers may not disallow employees from using accrued personal or vacation time during the course of the FMLA. Doesn't this then indicate that my employer is breaking the law by specifically not allowing employees to use paid personal days?

Huh?

An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.
[SUP]from https://www.dol.gov/whd/regs/compliance/whdfs28.htm[/SUP]

 

[hamikl94]

Huh?

An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.
[SUP]from https://www.dol.gov/whd/regs/compliance/whdfs28.htm[/SUP]

"Substitution of Paid Leave
Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave."

It specifies accrued sick or family leave being limited by the employer's policies regarding such leave. It does not, however, limit the use of accrued personal or vacation leave.

 

[Zigner]

It specifies accrued sick or family leave being limited by the employer's policies regarding such leave. It does not, however, limit the use of accrued personal or vacation leave.

What are you smoking?

 

[hamikl94]

What are you smoking?

Okay, that was rude and unnecessary. I was simply asking a question about the text of the law provided on the DOL website. It specifies that sick or family leave can be limited according to the employer's sick/family leave policies, i.e. a doctor's note is required to use, etc. It does not specify that the employer can limit the use of personal or vacation time. My question is SPECIFICALLY regarding the use of accrued personal time during the duration of FMLA. The law does state that, "An employee may choose to use or an employer may require an employee to use accrued leave." It then goes on to state what I mentioned above. Does this not indicate that an employer can only limit the use of sick or family time, and not vacation or personal time? I'm simply trying to get a handle on the case law before my attorney moves forward with the legal proceedings against my employer.

 

[Zigner]

Okay, that was rude and unnecessary. I was simply asking a question about the text of the law provided on the DOL website. It specifies that sick or family leave can be limited according to the employer's sick/family leave policies, i.e. a doctor's note is required to use, etc. It does not specify that the employer can limit the use of personal or vacation time. My question is SPECIFICALLY regarding the use of accrued personal time during the duration of FMLA. The law does state that, "An employee may choose to use or an employer may require an employee to use accrued leave." It then goes on to state what I mentioned above. Does this not indicate that an employer can only limit the use of sick or family time, and not vacation or personal time? I'm simply trying to get a handle on the case law before my attorney moves forward with the legal proceedings against my employer.

I'll post it one more time. After that- yeah, pay that attorney:
An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.
[SUP]from https://www.dol.gov/whd/regs/compliance/whdfs28.htm[/SUP]

 

[PayrollHRGuy]

I understand what you are going for here. You are misinterpreting the wording. But it is 5:00pm and I'm not up to diagramming a sentence.

 

[hamikl94]

Perhaps I haven't been clear enough? Pursuant to my employer's leave policy, sick leave can only be used for personal illness (obviously) and personal leave can be used to care for an ill family member, when one is having childcare issues, or to, as quoted, "Conduct any business that cannot be conducted otherwise outside of the work day." We have provisions for the use of personal leave as just mentioned. Given the text of the law combined with the text of my employer's policy, is it not illegal to deny someone the use of those days during FMLA (when used for maternity or paternity leave.). For example: if a new parent was unable to find a daycare that would accept a child as young as 6 weeks. Would that not be considered a "childcare issue" and therefore covered under use of paid leave during FMLA, in accordance with my employer's leave policy?

 

[eerelations]

An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.
[SUP]from https://www.dol.gov/whd/regs/compliance/whdfs28.htm[/SUP]

OP, this means that you may choose to use paid leave time during an FMLA leave if your employer's leave policy allows it.

(Which means that if your employers leave policy doesn't allow it, then you may not choose to use paid leave during an FMLA leave.)

 

[Zigner]

Perhaps I haven't been clear enough? Pursuant to my employer's leave policy, sick leave can only be used for personal illness (obviously) and personal leave can be used to care for an ill family member, when one is having childcare issues, or to, as quoted, "Conduct any business that cannot be conducted otherwise outside of the work day." We have provisions for the use of personal leave as just mentioned. Given the text of the law combined with the text of my employer's policy, is it not illegal to deny someone the use of those days during FMLA (when used for maternity or paternity leave.). For example: if a new parent was unable to find a daycare that would accept a child as young as 6 weeks. Would that not be considered a "childcare issue" and therefore covered under use of paid leave during FMLA, in accordance with my employer's leave policy?

There's really no way we can tell based on a snippet of the policy. You may wish to have the policy reviewed by a local attorney (that is beyond the scope of this forum).