Do I Have to Use Vacation Time Before FMLA?

Aug 04, 2016
By Peter Friedmann

The Family and Medical Leave Act provides certain employees with up to twelve (12) weeks of unpaid, job-protected leave per year.  The FMLA requires that all group benefits, including health insurance, be maintained during the FMLA leave as if the employee continued to work.

FMLA & Vacation Time

If you are wondering whether you are eligible for FMLA leave in Ohio, visit our Columbus, Ohio Employment Law Blog for helpful articles and explanations.  The FMLA does not require employers to pay employees while they are on FMLA vacation.  Some employers choose to do so and some do not.  If you are paid while on FMLA leave, consider yourself lucky because you would not need to use PTO or vacation time to supplement your income while on FMLA.  If your employer does not pay while you are on FMLA leave, you can choose to use PTO and vacation time, as described below.  The Columbus FMLA Lawyers at The Friedmann Firm are well versed in FMLA and can answer your questions about how it applies in certain situations.

Must I Use Paid Time Off or Vacation Time to Cover Some or All of My FMLA Leave?

Here in Ohio, the employer’s policy governs.  If the policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave, like vacation or PTO, to run at the same time.  29 CFR 825.207(a).  If your employer does not have such a policy, employees may choose to use accrued, paid leave to cover some or all of the period of FMLA leave.  The only logical reason employees would want to use PTO and vacation time to cover the time period they are on FMLA leave is to receive pay.  Otherwise, you are better off not using it, just in case you need time off in excess of the 12 weeks the FMLA provides you.  Using PTO and vacation time during FMLA does not result in you getting “extra” leave- you are still only entitled to 12 weeks of FMLA leave, even if you use PTO and vacation time concurrently.

FMLA Vacation Time

However, be aware that once your employer becomes aware that the reason you are taking leave is for an FMLA-qualified reason, it must notify you as to whether the leave will be designated and counted as FMLA within 5 business days of the date it becomes aware, absent extenuating circumstances.  29 CFR 825.300(d).  The employer has an obligation to designate leave as FMLA-qualifying pursuant to federal law as soon as the absence(s) become FMLA-qualifying.  Employees do not technically have the right to choose when they take FMLA leave.  If the employer becomes aware that the leave is FMLA-qualifying, it can force you to use FMLA leave if it is available to you, even if you request to use PTO or vacation time before taking FMLA.  This would be a situation where an employee may want to use PTO and vacation time concurrent with FMLA, if the employee does not pay while on FMLA. DIFFERENCES BETWEEN INTERMITTENT AND CONTINUOUS FMLA LEAVE

Our Columbus Ohio FMLA lawyers are happy to answer any questions you may have about how the FMLA applies to specific situations.  Request a free consultation- we are happy to speak with you.