As the DOL pointed out, there is much confusion surrounding FMLA and pay. It is unique to each employee and employer circumstance. As the UT Municipal Technical Advisory Service (MTAS) commonly tell cities, “FML is a protection, not a paycheck.” Employers’ policies determine if employees will be paid or unpaid and they can require that employees use any and all paid time off concurrently with FML.
Under the regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FML must follow the same rules of the employer’s policy that apply to other employees. The statute provides that employees may choose to take annual, personal, sick leave concurrently with FMLA. Employers can require their employees to take paid leave concurrently with FML. If a city does not choose to do this, its employees will then be able to “stack” time, which can result in an undue burden on the employer. (Example: An employee takes five weeks off for surgery and uses all of his available sick leave. The employer does not start FMLA protection until the employee runs out of sick leave, which means the employee will get five weeks sick leave and then the employer will start 12 weeks of FML when the employee is out of sick leave.)