# Family Medical Leave Act **URL:** \ **Category:** Factual Questions\ **Created:** [October 27, 2004, 7:20pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520 "2004-10-27T19:20:12Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![Atrael](https://avatars.discourse-cdn.com/v4/letter/a/6a8cbe/32.png) [@Atrael](https://boards.straightdope.com/u/Atrael)\ **Post date:** [October 27, 2004, 7:20pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/1 "2004-10-27T19:20:12Z")
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](http://www.dol.gov/esa/regs/statutes/whd/fmla.htm) 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. Thanks in advance. ---
**Author:** ![Iris](https://avatars.discourse-cdn.com/v4/letter/i/a5b964/32.png) [@Iris](https://boards.straightdope.com/u/Iris)\ **Post date:** [October 27, 2004, 8:31pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/2 "2004-10-27T20:31:32Z")
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. ---
**Author:** ![peri](https://avatars.discourse-cdn.com/v4/letter/p/67e7ee/32.png) [@peri](https://boards.straightdope.com/u/peri)\ **Post date:** [October 27, 2004, 8:39pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/3 "2004-10-27T20:39:23Z")
IANAL. My sister dealt with this same issue regarding limited sick pay versus FMLA absence. You want section [29 CFR 825.207](http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.207.htm). 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. ---
**Author:** ![Atrael](https://avatars.discourse-cdn.com/v4/letter/a/6a8cbe/32.png) [@Atrael](https://boards.straightdope.com/u/Atrael)\ **Post date:** [October 27, 2004, 9:30pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/4 "2004-10-27T21:30:19Z")
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. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [October 27, 2004, 10:48pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/5 "2004-10-27T22:48:07Z")
> [@Atrael](#): > > 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](http://www.dol.gov/esa/regs/statutes/whd/fmla.htm) 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. > > Thanks in advance. 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: > [@](#): > > (c) Substitution of paid accrued vacation, personal, or medical/sick > leave may be made for any (otherwise) unpaid FMLA leave needed to care > for a family member or the employee’s own serious health condition. > Substitution of paid sick/medical leave may be elected to the extent the > circumstances meet the employer’s usual requirements for the use of > sick/medical leave. An employer is not required to allow substitution of > paid sick or medical leave for unpaid FMLA leave ``in any situation’’ > where the employer’s uniform policy would not normally allow such paid > leave. 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. ---
**Author:** ![peri](https://avatars.discourse-cdn.com/v4/letter/p/67e7ee/32.png) [@peri](https://boards.straightdope.com/u/peri)\ **Post date:** [October 28, 2004, 2:39am UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/6 "2004-10-28T02:39:46Z")
Subsection (b) states: > [@](#): > > Where an employee has earned or accrued paid vacation, personal or family leave, that paid leave may be substituted for all or part of any (otherwise) unpaid FMLA leave relating to birth, placement of a child for adoption or foster care, or care for a spouse, child or parent who has a serious health condition. Subsection © states: > [@](#): > > Substitution of paid accrued vacation, personal, or medical/sick leave may be made for any (otherwise) unpaid FMLA leave needed to care for a family member or the employee’s own serious health condition. Substitution of paid sick/medical leave may be elected to the extent the circumstances meet the employer’s usual requirements for the use of sick/medical leave. An employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave “in any situation” where the employer’s uniform policy would not normally allow such paid leave. 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. ---
**Author:** ![Atrael](https://avatars.discourse-cdn.com/v4/letter/a/6a8cbe/32.png) [@Atrael](https://boards.straightdope.com/u/Atrael)\ **Post date:** [October 28, 2004, 2:44pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/7 "2004-10-28T14:44:26Z")
> [@doreen](#): > > 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: 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. > [@doreen](#): > > 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. 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 : > [@department of labor](#): > > PURPOSES.–It is the purpose of this Act– > (1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; > (2) to entitle employees to take reasonable leave for medical reasons, **for the birth or adoption of a child** , and for the care of a child, spouse, or parent who has a serious health condition; _(note it is listed as separate from medical reasons)_ > (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; > (Paragraph 1 and 2 are) > [ul]\*\* (1) the number of single-parent households and two-parent households in which the single parent or both parents work is increasing significantly; > (2) it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions; )\*\*[/ul] > (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and > (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause. 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. \*All emphasis added is mine ---
**Author:** ![Yeticus\_Rex](https://avatars.discourse-cdn.com/v4/letter/y/a698b9/32.png) [@Yeticus\_Rex](https://boards.straightdope.com/u/Yeticus_Rex)\ **Post date:** [October 28, 2004, 5:12pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/8 "2004-10-28T17:12:12Z")
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? ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [October 28, 2004, 8:35pm UTC](https://boards.straightdope.com/t/family-medical-leave-act/271520/9 "2004-10-28T20:35:58Z")
> [@Atrael](#): > > 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. > > \*All emphasis added is mine [From this page](http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.207.htm) > [@](#): > > d)(1) \*\*Disability leave for the birth of a child would be considered > FMLA leave for a serious health condition \*\* and counted in the 12 weeks of > leave permitted under FMLA. Because the leave pursuant to a temporary > disability benefit plan is not unpaid, the provision for substitution of > paid leave is inapplicable. However, the employer may designate the > leave as FMLA leave and count the leave as running concurrently for > purposes of both the benefit plan and the FMLA leave entitlement. If the > requirements to qualify for payments pursuant to the employer’s > temporary disability plan are more stringent than those of FMLA, the > employee must meet the more stringent requirements of the plan, or may > choose not to meet the requirements of the plan and instead receive no > payments from the plan and use unpaid FMLA leave or substitute available > accrued paid leave. (emphasis added) and > [@](#): > > (c) Substitution of paid accrued vacation, personal, or medical/sick > leave may be made for any (otherwise) unpaid FMLA leave needed to care > for a family member or the employee’s own serious health condition. > \*\*Substitution of paid sick/medical leave may be elected to the extent the > circumstances meet the employer’s usual requirements for the use of > sick/medical leave. An employer is not required to allow substitution of > paid sick or medical leave for unpaid FMLA leave ``in any situation’’ > where the employer’s uniform policy would not normally allow such paid > leave. \*\*An employee, therefore, has a right to substitute paid medical/ > sick leave to care for a seriously ill family member only if the > employer’s leave plan allows paid leave to be used for that purpose. > Similarly, an employee does not have a right to substitute paid medical/ > sick leave for a serious health condition which is not covered by the > employer’s leave plan. (emphasis added) 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.