I’m sorry if this has been asked before. I tried doing a search with several variations and didn’t get any hits.
My wife is expecting in March. She has 9 weeks total vacation time saved up. I know that the FMLA allows a full time employee to take up to 12 weeks total. While reading it over at The Department of Labor I see that it states that an employee is allowed to take whatever portion of that 12 weeks as accrued sick time if they desire, or the employer can require them to take sick time as part of the 12 weeks, the balance being unpaid leave. The problem we’re running into is my wife’s employer (She’s a teacher) is telling her that they only allow teachers to take 6 weeks of sick time, the rest of it has to be unpaid. Now I am not a Lawyer, so it’s possible I could have missed something in reading it over, or perhaps there’s an amendment to it that I don’t know about, but it doesn’t seem to jive with what I read.
So my question is to any and all HR or Lawyer dopers out there. Is her employer right in that they can put a limit on how much of her paid sick time she uses for the 12 weeks of FMLA time off? And if so, how? The FMLA states in it, that no other legislature passed at a lower level can detract from the rights it grants.
I believe employers have the right to limit other forms of paid leave in conjunction with leave under FMLA. For example, my employer gives employees the option to combine paid leave (disability, sick or vacation) with FMLA leave. Paid disability is limited to a maximum of 6 weeks for pregnancy in accordance with plan definitions (our disability plan defines pregnancy as a disabling condition for a maximum of 6 weeks or 8 weeks for cesarean or other complications). The remaining 6 or 4 weeks must be taken unpaid or with other forms of paid leave.
This may not be helpful to you, I just thought I’d share one example here. Are you certain that your wife’s employer is talking about a maximum of 6 weeks paid sick leave or disability? I find it unusual that an employer would want to limit paid sick leave in conjunction with FMLA leave.
The FMLA is a complex piece of legislation. If I were you, I’d contact the nearest office of the Department of Labor’s Wage and Hour Division. You should be able to find this on the DOL website.
IANAL. My sister dealt with this same issue regarding limited sick pay versus FMLA absence.
You want section 29 CFR 825.207. Your wife may elect to use her accrued vacation time for part or all of the remaining time, subject to her contract provisions. Subsection (e) states the employer may not place a limitation on this use.
I think I see how they’re getting around it. Acording the the FMLA, an employee is entitled to use any of all of thier vacation leave, family leave, or personal leave for all or part of the 12 weeks. Or an employer can require that they use that leave. However, sick leave specifically isn’t mentioned. It doesn’t matter that you’d have to work 10 years to accrue that amount of personal leave, as they only award you 3 days per year, technically it doesn’t say that you have the right to also use sick leave.
As for the reason why they’d want to limit the amount of paid time you can take for the 12 week period, well perhaps it’s the tinfoil hat speaking, but I can see an obviouse reason.
Many teachers never actually use all their sick days, and there is a cap at how much you can sell back upon retirement. And most people can’t really afford to go a month and a half without a paycheck. So they are both forcing most people to come back to work faster (thus not having to pay a sub), and making sure that there are still going to be sick days that teachers “lose” due to the cap.
I’ve spoked to more than a few of my female co-workers, and they say the same thing. That even though they had sick leave that would allow them to take more than 6 weeks off paid, they had to come back to work, because the company only allowed them to use 6 weeks, the other 6 weeks had to be unpaid.
And thanks peri, I’ll add that page to my list of documentation.
Is it vacation leave or sick leave your wife wants to take. Your OP uses both terms, and it’s not clear which she wants to use. It makes a difference, because according to the DOL page peri cited:
According to this, if I want to take 12 weeks off after giving birth, my employer must give it to me. But the employer is only required to substitute paid sick leave for the period of time that meets the usual sick leave requirements. If my doctor says I’m fit to return to work after six weeks, and the baby is healthy, I only get to use six weeks of sick leave, because I can only use sick leave when I am medically unable to work or to care for an ill child or spouse.
They probably can’t tell your wife exactly that they will only allow her to use six weeks of sick leave- but they certainly seem to be able to tell her that she can only use sick leave for the time that she is unable to work , and that the standard is six weeks after a normal, uncomplicated delivery.
Childbirth is considered a serious health condition under the FMLA. The employer has already stated that 6 weeks (paid) sick leave are allowed for the birth of a child. This does not have to be in writing if it is the policy they have used for other employees.
The vacation time can kick in after the paid sick leave is exhausted. Your wife’s employer can not prevent her from using vacation time for the remainder.
It’s sick leave. Which as I mentioned, specifically isn’t covered as something you can automatically use. I guess because most of the places I work have done away with the division between vacation and sick leave…it’s all “personal” leave now, I confused the two.
Right, but as I read the actual purpose of the law, that really isn’t it. Correct me if I’m wrong, but the section dealing with taking time off due to illness of yourself, or a family member, is worded seperatly from the part about childbirth. It states that the purpose is to :
So as I read it, it’s two different things being out for something that’s a medically required absence, and being out for having a new child become part of your household. It looks like employers are trying to mix the two together. Saying that it has to be medically neccesary for you to be out longer than 6 weeks in order to use sick leave. I’m not saying that’s against the letter of the law, I just think it’s scummy. I’m still gathering information about the districts policies on sick leave. How many days you can take in a row before you have to have a medical note…things like that. We’re actually covered, because her OB has already said that she’ll write the note saying my wife needs to be out for 10 weeks, which covers all the sick time she has, it just ticks me off in priciple, and I want to run this down.
Since your wife is a teacher, I suspect that she is in a teacher’s union and therefore covered by a union collective bargainning agreement. Usually these agreements are even more lenient than the FMLA mandate, but check the agreement and see if that’s actually the case.
Is she union? If she is, what does the agreement say about leaves of absence, specifically, pregnancy and medical leaves and the pay involved?
Otherwise, employers can dictate whether the leave can be paid by the use of vacation/sick/optional/PTO time, usually for fiscal latitude. California has a PDL (Pregnancy Disability Leave) law that gives the female employee control of how her accrued time is used. It is the only exception where the employer does not have control of the use of the employee’s accrued time. It may seem “scummy”, but that’s how the law is intrepreted. The FMLA was made to give job retention rights to mothers and fathers for a period of up to 12 weeks, not guarantee if it’s paid time in the process.
Is there another way your wife can cash out the other 3 weeks of accrued time off beforehand?
When a woman takes 12 weeks of FMLA due to the birth of a child, it’s really two separate types- one part for her own serious medical condition (which she would be entitled to even if she were puttng the child up for adoption), and the other part leave for the new child entering the household. Her employer may allow her to use sick leave for the “serious medical condition” part and not for the rest. I suppose they could just consider it all leave for the new child entering the household- but your wife won’t be better off that way. Because in that case, she won’t be allowed to use her sick leave at all, unless her employer allows men and adoptive parents to use sick leave for their FMLA leave when a new child enters the household.