FMLA and Other Leave

Even though federal law gives employers the option of running FMLA concurrently with other available leave, state law requires employees to use their paid leave concurrently with FMLA and to exhaust all paid leave before using unpaid leave.  Paid leave includes sick leave, vacation, and sick leave pool.  However, sick leave may be used only when the employee would be otherwise eligible for sick leave.   Another exception is that employees who are going on workers' compensation leave have a choice of whether to use their paid leave.  The workers' compensation leave runs concurrently with FMLA, whatever the employee decides about using paid leave.

FMLA does not run concurrently with state or Fair Labor Standards Act (FLSA) compensatory time.  If an employee chooses to use compensatory time while on an FMLA-eligible leave, that time is not counted against the employee's FMLA entitlement.  However, employees do have the right to use compensatory time before, during, or at the end of an FMLA leave, thus extending the job protection and benefit coverage.

When Leave Runs Out

If an employee is not ready to return to work after the FMLA leave is exhausted and still has accrued paid leave or approved sick leave pool time, the employee must be allowed to remain out until all accrued leave is exhausted.  If the employee has exhausted all paid leave, he/she can apply for additional sick leave pool time, if eligible, or for unpaid leave.

Occasionally an employee on FMLA leave resigns at the end of his/her FMLA leave.  Even if an employee has indicated that he/she may or will not return, FMLA protection cannot be withheld until the employee submits a written resignation.  At that point, protection may be withdrawn only as of the effective date of resignation.

This identified some basic issues about how leave may run concurrently with other types of leave and what to do when leave runs out.  Next we will covered some specific requirements for both employees and employers.