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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12554
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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I was out of my job for a total of 13days during which i provided

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I was out of my job for a total of 13days during which i provided an initial doctor 's note and a clearance letter upon return. During my absence the agency utilized my accrued sick and vacation time to pay me. Upon my return they requested that I return to my physician in order to have him fill out fmla paperwork. I find that very strange since they have already used my accrued time. Before I do anything I need some advice. Thank you.

Hi, My name is XXXXX XXXXX my goal is to provide you with Excellent Service,



1. How long have you worked for this employer ??



2. What is your position with this employer ?



3. You stated that they used your accrued sick time and vacation time - Were you being paid during those 13 days that you were out ill ?


4. Did they ask you if you wanted to use your accrued vacation time ?



Thank you,




Customer: replied 3 years ago.
I occupy an entry level position as a counselor and have been with my employer for almost 2 years and no they did not ask me if I wanted to use my vacation time. They automatically processed my accrued sick time which ran out and consequently they tapped into my vacation time which they utilized to pay me.

I would like to ask you a few more questions, if you do not mind because something about the employer and his actions just do not sit right with me,



Please be kind enough to number your answers to correspond with the question numbers, Thank you,


1. Does your employer have at least 50 employees ?



2. If so, does the employer have posters provided by FMLA prominently displayed where you and other employees are apprised of your rights under the Family and Medical Leave Act ("FMLA")?



3. Did you ask your employer for leave under FMLA before you took your 13 days ?




At times, there might be a slight delay between your rply and my Answer and that is because I assist several customers simultaneously, so please be assure that I have not forgotten you and I will be back to you as quickly as possible






Customer: replied 3 years ago.
1) yes the agency has more than 50 employees
2)yes we have a poster in our office that states employees are protected under fmla
3) no I did not request fmla leave. It was unexpected and when I faxed over my doctor's letter which stated a projected return date, my HR manager explained that as per policy anything over 5 days goes into fmla which I did not agree to but now feel coerce to do because my HR manager stated that since my vacation time was used that qualifies as fmla. Please note that I have been paid out of my accrued sick and vacation time and I am fully back into my role as counselor. I do not understand why and how I can be processed under fmla for the time that I was out.

I cannot say why your leave is now being processes as FMLA because that would be improper at this stage. The Family and Medical Lave Act ("FMLA") which permits any eligible employee to take up to 12 weeks of unpaid leave under FMLA either for himself, or to take care of a sick family member.


As you probably know, any employer having 50 or more employees must comply with the requirements of FMLA. Most employees prefer not to use their vacation time for FMLA leave. What your employer is doing right now, should have been processed at the beginning of your leave. it really is difficult to figure out what he is thinking. But, one thing I can tell you with a good deal of certainty is do not permit your employer to mark up your personnel file as having taken your 13 days under FMLA and still reduce your paid sick days and accrued vacation time because he will be deducting your time off, twice. So, this has to be an "either or proposition" . He is wither going to mark your records as having been out on FMLA, or taking your accrued sick days and vacation time. Since neither you, nor I are mind reasers, there is no way for either of us to know what your employer has in mind or what h is planning. It would be to your extreme benefit that, before you sign anything, or even before you verbally agree to anything, you either ask him, or ask your HR Department what exactly they are doing with your accrued time, or how they intend to treat the accrued time, if they "retroactively approve your 13 days as having been taken under FMLA,




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