Can my employer use vacation days I am earning towards next year while on FMLA?

Get Legal Help Today

 Secured with SHA-256 Encryption

Can my employer use vacation days I am earning towards next year while on FMLA?

I had surgery at the end of last month and not sure when I’m returning to work. I’m using my last 4 days of vacation from this year and the remaining days are FMLA. I just found out that my employer is now trying to use however many days of vacation I have earned towards the following year for the days that I thought were covered under FMLA. This would mean that I wouldn’t have any vacation time for next year. Can my employer do this? And if so, let’s say hypothetically for some reason I no longer work with the company next year, wouldn’t I have to pay that money back?

Asked on July 7, 2011 under Employment Labor Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

As a general matter, an employer *may* require an employee to use vacation (or personal or sick or comp or etc.) days as part of his or her FMLA leave; the employer is not required to provide unpaid leave and also let the employee keep his or her paid leave days for future use, but may instead make the employee use them to convert at least part of the FMLA leave into paid leave.

To make you use "future" days, however, the employer would seem to have to speed up your accrual of them--i.e. the employer would have to grant them to you, since an employee can only be made to use days he or she actually has (including days that are accrued during the FMLA leave); the employee cannot be required to use prospective but unearned days. Therefore, to have you use next year's leave, you'd have to be given it early; and if given it, you then would not presumably have to repay it if you left early, just as you don't have to repay any days you've accrued and used.  You should seek to get this clarified with the employer first if possible, since the last thing you'd want is to get into a legal fight with them should you leave employment.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption