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Ray
Ray, Employment lawyer
Category: Employment Law
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Experience:  30 years in Employment law
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I work city's Fire Dept.. We accrue 1 sick day per month per

Customer Question

I work for our city's Fire Dept. . We accrue 1 sick day per month per our contract. One can retire after 25 years with 300 sick days in our sick leave bank if we do not use any. Some in our admin are telling us the city can "make" you go on FMLA . I cited an example to them if I were to be injured off duty (broken leg, etc.) or for by pass surgery that one has always and should be able to use from the sick leave bank that we "earned" per our contract. I just read the FMLA law and it says in there that certain employers have the right to make you use your sick leave while on FMLA. The way I read that is, if I want to be FMLA qualified they can grant the FMLA but using my sick leave. I get that. What I don't believe or interpret is they can NOT make me apply and use FMLA if I don't want it since I earned my own sick leave and I have an injury. Its my choice. Is that correct ? Brent
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.The federal government does not regulate sick leave at all.

From the DOL..

Currently, there are no federal legal requirements for paid sick leave. For companies subject to the Family and Medical Leave Act (FMLA), the Act does require unpaid sick leave. FMLA provides for up to 12 weeks of unpaid leave for certain medical situations for either the employee or a member of the employee's immediate family. In many instances paid leave may be substituted for unpaid FMLA leave.

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Any sick leave and its use is strictly between you and the employer.There may be an a agreement or policy by employer here, the federal government does not require it.Here you should be able to use your medical leave under their terms prior to any FMLA.You may want to verify that with hr.

Once you use up the sick leave then you should still be able to use FMLA.But the employer here sets the terms of use of sick leave not the federal government.This should change one day but it hasn't so far.

http://www.dol.gov/dol/topic/benefits-leave/sickleave.htm

Employee Eligibility

To be eligible for FMLA leave, an employee must work for a covered employer and:

  • have worked for that employer for at least 12 months; and
  • have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
  • work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

Leave Entitlement

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:

  • for the birth of a son or daughter, and to care for the newborn child;
  • for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
  • to care for an immediate family member (spouse, child, or parent — but not a parent "in-law") with a serious health condition; and
  • when the employee is unable to work because of a serious health condition.

Leave to care for a newborn child or for a newly placed child must conclude within 12 months after the birth or placement. (See CFR Section 825.201)

Spouses employed by the same employer may be limited to a combined total of 12 workweeks of family leave for the following reasons:

  • birth and care of a child;
  • for the placement of a child for adoption or foster care, and to care for the newly placed child; and,
  • to care for an employee's parent who has a serious health condition.

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

Employer here and union/employee has final say here thats the bot***** *****ne.

I appreciate the chance to help you today.Please let me know if you have more follow up.

Expert:  Ray replied 1 year ago.

I thin this is the bot***** *****ne here..

Can an employer require paid leave to run at the same time as FMLA leave? Here, the employer’s policy governs. If the policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave to run at the same time. 29 CFR § 825.207(a). In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave. Here it appears that your employer policy here governs and if it requires you to take it jointly unfortunately it is within existing law.

I wish I had better news here but I know you want honest information.Thanks again.