Under the Family And Medical Leave Act (FMLA), employees receive an entitlement to unpaid leave to take care of themselves or their family members in the event of a serious illness if the employer is big enough and the employee worked for the employer for approximately a year. Employees receive the entitlement for other things such as adoption, so the new parents can bond with adopted children too. Generally, the law is a great thing. The law is great for employees who need family time. The law is good for business (whether they admit it or not) because employees have time to take care of personal business and return to work invigorated.

When an employee applies for FMLA, the employer can require the employee to use accrued paid leave including vacation and sick time concurrently with the FMLA.

Let's look at two examples of how employers apply the FMLA rules. First, let's pretend you work for an employer that meets the business size requirements, but that employer does not give vacation time. You or your spouse received a serious diagnosis that requires you to take 12 weeks off work for recovery. Under FMLA, your employer must grant you 12 weeks of job protection. But, the employer does not have to pay you for any of that time.

In our second example, your employer does pay vacation time and you accrued 2 weeks of vacation. You or your spouse gets a serious diagnosis and the doctor says you must take 12 weeks off. Under this example's facts, the employer must pay you for two weeks of vacation, but you receive only 10 weeks of job protection after you exhaust your vacation pay.

To fix this seemingly unfair situation, the U.S. 9th Circuit held that an employee had the right to reject an employer's designation of time off for FMLA qualifying events if the employee had accrued vacation time. No other circuit adopted this interpretation. To combat this interpretation, the United States Department of Labor (DOL) issued a memo on March 14, 2019, which clarified it's interpretation that employers can designate FMLA leave. As much as it pains this author to agree with the present administration, the DOL interpretation is correct. Other than in the 9th circuit, employees do not get to delay FMLA until after they used their accrued vacations.

So, what does this mean for the typical employee? For me, it means if you have accrued vacation time you are holding, unless you know you are going to need FMLA time and the income from vacation pay while you are on FMLA, don't delay! Take that vacation. However, if you plan to have a child, adopt, or know you will need surgery or recovery time, you should weigh whether its better to take the vacation time or hold the pay until later. These decisions are personal decisions. You should have a serious conversation with your physician about how to plan your leave. Everyone's personal facts differ.

Joseph E. “Jody” LaFleur, Esq.