NEW YORK NURSE: April 2008

RNs at Work

Substitution of paid leave for FMLA

Q.: I’m taking some time off under the Family and Medical Leave Act (FMLA) to care for my husband, who has a serious medical condition. When I notified my employer that I was going to be taking time for a medical leave, they told me that they would require me to take paid leave as part of the twelve weeks of FMLA leave I’m entitled to. Is that legal?

A.: Yes, employers can require employees (or allow employees to choose) to substitute accrued vacation, sick, family, medical, or personal leave as part of FMLA leave. It is important to note that the type of paid leave that can be substituted varies depending on the reason for the leave. That is, if it’s taken to care for a child (child care leave), as opposed to family medical leave, or employee medical leave. In order to do so, the employer must:

Have a policy in place to the effect that the employer can require or allow the substitution of accrued paid leave for FMLA leave;

Consistently apply the policy either in line with the policy language or past practice;
Designate the leave as paid leave when it is requested or when the employee gives notice of the leave, or when the employer determines that the leave qualifies as FMLA leave under the law.
So long as the employer meets these criteria, it can require the substitution of paid leave for FMLA leave up to a total of twelve weeks.

The NYSNA EGW Program receives many inquiries each month from members who have problems in their workplaces. If you have a question about labor relations at your facility, contact your NYSNA nursing representative. If you have a question you think should be featured in this column, send it to: RNs at Work, NYSNA, 120 Wall Street, 23rd Floor, New York, N.Y. 10005.