Forced to Use Vacation and PTO While on FMLA and Short Term Disability

**Dave50** · 02-24-2011, 07:23 PM

My question involves labor and employment law for the state of: Mo
I spent 8 weeks on FMLA recovering from hip surgery. My company has in place a short term disability insurance plan that pays 60% of my normal pay while on FMLA. The company forced payment of accrued Vacation and PTO even leaving me with a negative balance. The company handbook does say while on FMLA you must use all accrued Vacation and PTO. Employees do not have a choice the company forces payment. I thought there was a stipulation in the FMLA regulation that if the employee was on paid FMLA (paid through a short term disability) that neither the employer nor the employee could independently require the use of PTO and vacation pay but it could be done under mutual agreement. The problem with the company taking away all my PTO and Vacation is that a few days after returning to work I took pneumonia and had to be absent a day to see the Doctor. Because I had no PTO time an absence even with the Doctors statement cost me 3 attendance points. After you get to zero points your terminated.
My question is: Since I was receiving disability pay while on FMLA should I have been given the option as to whether or not to use my PTO and Vacation? Can the company force pay it off ?

**PattyPA** · 02-24-2011, 09:12 PM

I'm not sure where you heard that, but I've never seen it in the regulations.

Substitution of Paid Leave

Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave.

http://www.dol.gov/whd/regs/compliance/1421.htm

Did they just supplement your STD, i.e., 40% per week (for a 40-hour per week, that would be 16 hours per week)? Or more than that?

**Dave50** · 02-25-2011, 07:40 AM

Quoting PattyPA

I'm not sure where you heard that, but I've never seen it in the regulations.

http://www.dol.gov/whd/regs/compliance/1421.htm

Did they just supplement your STD, i.e., 40% per week (for a 40-hour per week, that would be 16 hours per week)? Or more than that?

I have since found the regulation:

§ 825.207 Substitution of paid leave.

(d) Leave taken pursuant to a disability leave plan would be considered FMLA leave for a serious health condition and counted in the leave entitlement permitted under FMLA if it meets the criteria set forth above in §§825.112–825.115. In such cases, the employer may designate the leave as FMLA leave and count the leave against the employee's FMLA leave entitlement. Because leave pursuant to a disability benefit plan is not unpaid, the provision for substitution of the employee's accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee's salary.