Can I use paid time off during my FMLA leave?

Question

I recently suffered a concussion and a broken leg in a skiing accident. I was hospitalized for several days, and since then I have been recuperating at home. The doctor said I should be able to return to work in a couple of weeks, but I may have to work only part time until I have fully recovered from my concussion.

The HR department at my job immediately put me on FMLA leave. I have several weeks of vacation time saved up, but HR said I can't use it until 30 days have passed since my accident. Company policy requires employees to give this much notice before using vacation time, but it's not as if I knew I'd be in an accident! Can they require me to follow their notice requirements if I want to use my vacation time for FMLA leave?

Answer

The federal Family and Medical Leave Act (FMLA) gives you the right to use your accrued paid leave during your FMLA leave. However, you can only use your paid leave for the reasons covered by your employer's policy. And, you must follow your employer's rules for using that type of leave, including its notice requirements.

The FMLA requires employers to allow eligible employees to take time off for certain health and caretaking responsibilities. Under the FMLA, employees have the right to take up to 12 weeks off to recover from their own serious health conditions (among other things).

It sounds like your injuries meet the legal definition of a serious health condition. As long as you haven't used any FMLA leave for other reasons, this means you may take up to 12 weeks of leave to recuperate. You may take this type of leave on an intermittent basis, which means that you could work part time and use FMLA leave for the hours you take off, as long as it's medically necessary.

As you point out, employees can't know when they are going to have accidents. The FMLA takes this into account in its notice requirements. Employees must give 30 days' notice if they need to take FMLA leave for a foreseeable reason (to give birth, for example, or for a surgical procedure that can be scheduled well in advance). However, if an employee's need for leave is not foreseeable, the employee has to give only as much notice as possible. In the case of an accident that puts the employee out of commission for a while, that might mean a day or two after the fact. The law also allows family members to give the necessary notice in this situation.

Your right to take FMLA leave immediately, without advance notice, does not extend to paid leave, however. This is one of many compromises the law makes to try to ease the burden on employers. Employers may require employees to follow the usual notice requirements for paid leave.

In your situation, your employer may require you to wait until 30 days have passed before you can use vacation time. Until then, you are covered by the FMLA. Your rights to return to your job, and to continue your health insurance benefits, are protected. But you might not get paid for your time off.

Many employers don't take advantage of this right. Perhaps they would rather see their employees use up their paid time off more quickly, or they might simply feel that employees who have suffered unexpected medical trouble should not also lose their paychecks. However, employers are entitled to insist that employees follow their notice requirements, as yours has.