Can my employer use vacation days I am earning towards next year while on FMLA?
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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 13 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.
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