Many employees want to use their paid time off before going on unpaid leave under the Family and Medical Leave Act (“FMLA”), in order to extend their total leave time. Many employers might allow this “piggy-backing” of leave time, but doing so may result in a violation of the FMLA and exposure to potential liability.

Employees often tell their employers that they need to take FMLA leave, but ask to use their paid time off (such as sick days, personal days and/or vacation days) before they start their unpaid FMLA leave. Often, employers grant these requests, unaware that in doing so they are violating the FMLA. In a recent opinion letter, the United States Department of Labor reminded employers that they must designate an employee’s leave as FMLA-protected as soon as the employer becomes aware that the leave qualifies under FMLA.  Delaying the designation of the leave as FMLA, even if it meant so that an employee can first take his/her paid time off, may violate the FMLA.

Employees can sometimes “substitute” their paid time off for part of their otherwise unpaid FMLA leave; in fact, in some situations, employers can require employees to take their paid time off and FMLA leave concurrently. However, employers may not designate more than 12 weeks (26 where applicable) as FMLA leave, nor can employees use paid leave to “stretch” their FMLA leave. This is advantageous to employers because concurrent paid time off and FMLA leave can help minimize the overall amount of time an employee is not at work.

Complicating the matter, employers need to be especially careful when dealing with leave time permitted under other laws, such as the New Jersey Family Leave Act, which sometimes might allow leave to run concurrently with FMLA but not paid time off.

Employers should promptly contact their attorneys if this complex issue presents itself.

For more information, please contact Parker McCay’s Labor and Employment Department.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.