Question: One of our employees is on intermittent Family and Medical Leave Act (FMLA) leave. She’s gotten sick and claims it’s unrelated to her reasons for being on FMLA leave. Can we include these days in her FMLA time and have them go unpaid?
Answer: No. Unless you have reason to believe she’s being untruthful, then you can’t designate non-FMLA leave as FMLA leave. To make this determination, you have to look at the employee’s certification and determine whether the leave is related. For instance, if an employee qualifies for FMLA leave related to knee surgery and follow-up care, you wouldn’t count time off for a stomach virus as FMLA leave under that certification.
Remember, however, it’s possible for employees to qualify for FMLA leave for more than one serious health condition. Let’s say an employee who is approved for FMLA leave for the knee condition is then diagnosed with cancer and needs separate intermittent leave for that condition. The employee can take leave for both (provided the person is eligible and hasn’t exhausted 12 weeks total) but will have to specify which condition the leave will be used for when the employee uses it.
Although the FMLA only requires unpaid leave, the Department of Labor allows employees to elect, or employers to require employees, to use accrued paid vacation, sick, or family leave concurrently with FMLA-qualifying leave for some or all of the FMLA leave period. If paid leave is substituted, employees must follow employer leave rules.
When paid leave is used for FMLA-covered reasons, such leave is FMLA-protected. However, employees can’t use paid vacation, sick, or family leave before using unpaid FMLA leave and can’t save unpaid FMLA leave time by taking paid leave first.
Bottom line: Before designating an employee’s time off for additional sickness as FMLA leave, you must determine whether this sickness is an FMLA-qualifying reason. If it is, days off related to the sickness can be included in FMLA leave.
The employee may also elect, or the employer may require, use of accrued paid leave for some of the FMLA period if such an option exists. If it isn’t related, then you should treat it as any other illness under your policies.
Margaret Lohmann is an associate at Steptoe & Johnson PLLC in Bridgeport, West Virginia, and can be reached at maggie.lohmann@steptoe-johnson.com.
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