Publications

Substitution of Paid Leave

  1. Can my employer require me to use my paid leave for unpaid FMLA leave?34

    2. 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, such as vacation or personal leave, for some or all of the FMLA leave period.35 No limitations may be placed by the employer on your request to substitute paid vacation or personal leave for these purposes.36

    Regarding the use of sick leave to care for an eligible family member, nothing in the Act requires an employer to provide paid sick leave, paid medical leave or paid family leave in any situation in which the employer would not normally provide such paid leave.37 For example, if your employer does not allow employees to use their sick leave for anyone else except themselves, the employer is not required to let you substitute sick leave for a family member. This is an area, however, that AFSCME affiliates may negotiate to permit the broadest type of paid leave language possible. (See the "Bargaining for FMLA" section on Page 15.)

  2. 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?

    3. Not if the employer requires you to first use your paid leave for your family and medical leave.38 As stated in question 25, 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. Because there is nothing in the Act that either prohibits an employee from using FMLA leave and paid leave consecutively or requires an employee to substitute paid leave for FMLA leave, AFSCME councils and locals may negotiate language that allows our members the broadest discretion in deciding whether to take the leave as unpaid or paid.

  3. 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?39

    4. 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.

Print Version