Can a Company Force Employees to Use Vacation Time Before Taking FMLA?

Companies have different policies regarding whether an employee must take vacation time, referred to as "compensatory leave," before taking leave pursuant to the Family and Medical Leave Act (FMLA). The act itself does not disallow it. As such, a company is free to set its own policy according to its needs.

  1. Overview

    • There's nothing in the FMLA that says an employer can't make an employee take vacation time either prior to, or during, leave. The FMLA addresses how many employees an employer must have before the FMLA applies; the act also addresses how many hours and months an employee must work before becoming eligible. However, it doesn't state that an employer can't require an employee to use vacation time. As such, it's entirely up to the company as to what policy it sets.

    Before FMLA Leave

    • Because FMLA leave is unpaid, employers typically don't make employees take vacation time before FMLA time. Under the FMLA, eligible employees can take up to 12 weeks of leave; if an employer forced an employee to take vacation time before FMLA leave, the employee likely could end up being away from work for up to 14 weeks. Because employers must keep the position open for an employee's return from FMLA leave, employees typically don't have to take vacation time before FMLA leave. Again, it's entirely up to the employer.

    Concurrent

    • The FMLA allows employers to require employees to take vacation time concurrently with FMLA leave. This means that FMLA-eligible employees often receive some form of pay during FMLA leave. Because FLMA leave is unpaid, accrued vacation pay often comes in handy. Although it might be more to an employee's liking to be able to take 12 weeks of FMLA leave and vacation time separately, employers don't have to allow this, as it reduces the workforce for a longer period of time.

    Additional Considerations

    • If your employer requires you to take vacation time before or concurrently with FMLA leave, it's perfectly legal for him to do so. If you have questions about your employer's policy, speak to human resources about it. If you feel the policy is being applied to you and not to other employees, also explain your concerns to someone in human resources.

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