The Essential Guide to Family & Medical Leave

128 | the essential guide to family and medical leave
Tip
It’s really overlap, not substitution. Although the regulations interpreting
the FMLA, courts, and commentators all refer to “substitution” of paid
leave, that’s not exactly accurate. The employee isn’t using paid leave
instead of FMLA leave but is using the two types of leave at the same time.
• Accrued paid vacation or personal leave. Either of these can be used for an
FMLA leave for a serious medical condition (an employee’s or a family
member’s) or for parenting leave. If your company limits when or for
how long employees can take paid vacation, these limits can’t be applied
to leave that is FMLA-qualified.
• Paid family leave. This refers to an employer’s policy of allowing
employees to take paid leave for birth, adoption, or foster placement or
to care for a spouse, child, or parent with a serious health condition. Paid
family leave may be substituted for FMLA leave only for conditions that
are normally covered by your company’s family leave policy.
Example: Your company has a paid family leave policy that allows employees to
take paid leave to care for ill children and spouses. Your employee, Kurt, has asked
for a two-week leave to care for his father following surgery to treat prostate cancer.
You give Kurt a written FMLA designation and, in the designation, inform him that
he must use accrued paid family leave under your company’s policy.
Bad move. Because your company’s paid family leave policy does not cover care
for a parent, you can’t require Kurt to use it during his FMLA leave. The effect is that
Kurt has the right to take unpaid FMLA leave to care for his father, and he retains his
paid family leave rights under your company’s policy.
• Medical or sick leave. You can require or permit an employee to use
medical or sick leave during an FMLA-qualified leave for the employee’s
own serious health condition or to care for a spouse, child, or parent
with a serious health condition. Again, your company’s policy is
your guide: An employee is entitled to take medical or sick leave in
conjunction with FMLA leave only to the extent that it falls within your