Substitution of Paid Leave
27. Can my employer require me to use my paid leave for unpaid FMLA leave?35
Yes, with some restrictions. Congress gave employers the right, unless barred by a union contract or state law, to substitute paid leave whether or not you requested it, for unpaid FMLA leave. You, too, can request to substitute your accrued paid leave for some or all of the FMLA leave period; however, you must follow the terms and conditions of your employer’s normal leave policy. If you fail to comply with the requirements in the employer’s paid leave policies you are no longer entitled to substitute the paid leave, but you remain entitled to take unpaid FMLA leave.36
28. If my sick leave, vacation, personal leave, etc., adds up to more than 12 weeks, am I still entitled to an additional 12 weeks of unpaid leave after I have exhausted my paid leave?37
Not if the employer requires you to first use your paid leave for your family and medical leave. As stated in the previous question, employers may require the employee to substitute accrued paid leave for FMLA leave and therefore count that paid leave as part of your 12 weeks of family leave. If neither you nor your employer elect to substitute your paid leave then you remain entitled to all earned/accrued paid leave under the terms of your employer’s plan.
29. My employer has a no-fault attendance policy. Will my FMLA leave be counted against that policy, thereby putting me in line for disciplinary action?38
No. The FMLA regulations clearly state that an employee cannot be penalized in any manner whatsoever if the employee is absent for a reason covered by FMLA.
