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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12952
Experience:  Significant experience in all areas of employment law.
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We have a California employee, her FMLA was up October 12th.

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We have a California employee, her FMLA was up October 12th. It started July 12th.

She extended her leave each time she said she was coming back with the a Dr's notice.
It was told to me that we could let her go because her FMLA was up. She also had an extra 4 weeks, 3 of which was vacation. But we never discussed the extra 4 weeks 3 of which would be vacation. Does that mean we pay her the 3 weeks because it was never discussed that extra week's taken would be vacation> or do we not have to pay her because she took the extra weeks but not under FMLA.
Hi Valerie,

Thank you very much for your question this evening. FMLA leave is unpaid, protected time off work. An employee is only entitled to compensation while on FMLA if they have accrued paid vacation or sick days, and then, only in the amount of the accrued days. FMLA doesn't factor into the analysis at all--it's just a matter of how many accrued paid vacation or sick days the employee has.

I'm not sure if that exactly answers your question so please feel free to request clarficiation if necessary.
Customer: replied 3 years ago.

So basically we should pay her the 3 weeks even if she took 3 weeks extra plus one week?

If the employee has accrued sick days to cover that entire span of time, then you have a contractual obligation to pay it. If the employee only has accrued vacation, you can refuse to pay it but must "cash the employee out" upon separation of employment, since accrued vacation is a vested "wage" and cannot simply be forfeited.
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