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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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If I have been placed on administrative leave and suffering

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If I have been placed on administrative leave and suffering from stress and health issue can I go out on FLMA for 12 weeks and use accrued sick time? This is in the state of California

Hello and thank you for entrusting me to answer your question.

If you have worked for your current employer for at least one year, your current employer has at least 50 employees, and a doctor certifies that you are suffering from a "serious health condition," then you would be eligible for 12 weeks of unpaid FMLA leave and could use your accrued vacation time during those days.

However, FMLA does not provide absolute job "immunity," and employees cannot take FMLA to escape an imminent termination. FMLA simply prohibits an employer from terminating an employee as a consequence of that employee taking leave. So, provided your employer could demonstrate that there was an independent basis for letting you go (something that happened before the FMLA), then you taking FMLA would not prevent your employer from still letting you go.

If your objective is to ensure that you can use all your vacation time, you should know that California law regards XXXXX XXXXX as a "wage earned," and as such, an employer MUST cash an employee's unpaid vacation time out upon separation of employment. Put another way, even if you were let go, you'd still be entitled to payment for those vacation days.

So to summarize, FMLA would be available provided you satisfy the criteria described above. However, FMLA does not provide absolutely job immunity and will not prohibit your employer from terminating you if they have an independent basis for doing so. You are always entitled to a cash out of your accrued vacation if you are let go.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.

Customer: replied 4 years ago.

Thanks, XXXXX XXXXX accrued vacation must be paid out, however I also have accrued holiday/sick that would not be paid out. The botXXXXX XXXXXne is if they have cause done to something that happened before I went on FMLA - the reason for the administrative leave.

I am very sorry, but I don't think I understand what you are trying to ask by your last post. Can you please clarify?
Customer: replied 4 years ago.

If I'm reading your response correctly if there is cause for termination as a result of administration leave regardless of now being on FLMA I could be termed. I understand that they need to pay out vacation. However the company I work for breaks out leave accrual into two banks one vacation and the other holiday/sick. I wouldn't be so concerned if I was younger but I will be 60 next month.


Your understanding of the law is correct with the exception of your assumption that holiday/sick leave does not need to be cashed out upon termination. While pure sick leave need not be cashed out, when sick leave is combined indistinguishably with vacation days or holiday days it becomes a vested wage, just like pure vacation days, and must ordinarily also be cashed out upon termination.

I hope that this clarifies things for you. Again, please do not hesitate to let me know if I can be of any further assistance. If not, I would be very grateful if you would remember to rate my service so that I will receive credit for helping you. Have a great evening.
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