FMLA vs sick leave
October 18, 2022 8:03 AM Subscribe
If an employee is caring for a sick family member who will likely recover reasonably soon (within a week or two) but might have intermittent support needs, is there any advantage to filing for FMLA vs just taking sick leave? The employer seems to require that the sick leave be used concurrently with the FMLA leave.
- This is in the U.S.
- Assume the manager wants to do right by the employee, which includes wanting to make sure the employee is protected if something gets weird.
- Assume that HR is not at all helpful and may be one of the things the employee needs protection from.
- This is in the U.S.
- Assume the manager wants to do right by the employee, which includes wanting to make sure the employee is protected if something gets weird.
- Assume that HR is not at all helpful and may be one of the things the employee needs protection from.
My understanding is that FMLA provides protection so that you can’t get fired for taking “too much” sick leave or, once you’ve used up your sick leave, leave without pay.
posted by exceptinsects at 8:20 AM on October 18, 2022 [8 favorites]
posted by exceptinsects at 8:20 AM on October 18, 2022 [8 favorites]
Sick leave laws vary from state to state. Some states have no protections for employees. So if you don't do FMLA, you are limited to whatever protections, if any, you get from your state laws, plus any promises your employer makes. It sounds like you think the employer might be punitive / aggressive about someone taking sick time? If so it seems like filing for FMLA is worth it.
posted by mrgoldenbrown at 8:20 AM on October 18, 2022
posted by mrgoldenbrown at 8:20 AM on October 18, 2022
Sick leave means you get paid, FMLA means you don't get fired for being unreliable. The main downside of FMLA is that you have to do a lot of paperwork, and that you only have so much (12 weeks a year?) which may or may not be the same amount as your leave.
posted by blnkfrnk at 8:20 AM on October 18, 2022 [5 favorites]
posted by blnkfrnk at 8:20 AM on October 18, 2022 [5 favorites]
FLMA provides protections so an employer can't fire you due to to excessive absences or other things that may happen when you take leave (such as not meeting a deadline bc you were out for two weeks), so yes FMLA does provide some protective benefit. It also protects for unpaid leave, and has some provisions for part time schedules and such if needed. Worth taking if you need it.
posted by AlexiaSky at 8:20 AM on October 18, 2022 [1 favorite]
posted by AlexiaSky at 8:20 AM on October 18, 2022 [1 favorite]
There is such a thing as intermittent FMLA if the leave isn’t going to be concurrent. For example if the sick family member is admitted to hospital, or if there are multiple people taking turns being the caregiver.
It might be a consideration to just take sick leave now and save the FMLA for later if this is projected to be a long period of illness/recovery.
posted by MadMadam at 8:35 AM on October 18, 2022 [2 favorites]
It might be a consideration to just take sick leave now and save the FMLA for later if this is projected to be a long period of illness/recovery.
posted by MadMadam at 8:35 AM on October 18, 2022 [2 favorites]
If you can foresee that you might need FMLA, it's good to put in for it, even if you wind up not using it. If the leave can be planned (i.e. you have a surgery date in the future) legally you're supposed to put in for FMLA within 30 days of being out or as soon as you can.
If there's an emergency (like you break a leg or something) then you can put in for it retroactively. You could be like "Surprise, I'm the caregiver, I need FMLA" but if your HR department is going to be a jerk about it maybe go by the book and apply for FMLA in advance (which generally needs you to prove everything on paper, which takes time for statements on letterhead from doctors etc.)
The other good thing about FMLA is that by receiving it, they can't decline to pay your sick leave because the very process requires you to prove it's medically necessary.
posted by blnkfrnk at 8:44 AM on October 18, 2022
If there's an emergency (like you break a leg or something) then you can put in for it retroactively. You could be like "Surprise, I'm the caregiver, I need FMLA" but if your HR department is going to be a jerk about it maybe go by the book and apply for FMLA in advance (which generally needs you to prove everything on paper, which takes time for statements on letterhead from doctors etc.)
The other good thing about FMLA is that by receiving it, they can't decline to pay your sick leave because the very process requires you to prove it's medically necessary.
posted by blnkfrnk at 8:44 AM on October 18, 2022
In this situation I did not take intermittent FMLA - but I had reason to believe I was working with a sympathetic boss and grandboss, and a reasonable HR structure, in an environment where I was considered an indispensible and outstanding employee and where it was highly unlikely there would be any repercussions for me if my work was less stellar than usual or I took a bit more time out of the office than usual over the course of a few weeks/months. It was a very lucky position to be in. If I hadn't been sure that I had a lot of support backing me up, beyond just a sympathetic direct manager, I'd have done the paperwork just to be sure it was there and could be waved in my own defense if I suddenly found myself on the bad end of a "your performance is slipping" conversation, a refused raise or promotion, etc. FMLA in that situation may be largely a CYA measure, and the employee will have to decide how much that is worth vs. the paperwork.
posted by Stacey at 8:45 AM on October 18, 2022 [1 favorite]
posted by Stacey at 8:45 AM on October 18, 2022 [1 favorite]
File for FMLA.
posted by Bottlecap at 9:10 AM on October 18, 2022 [1 favorite]
posted by Bottlecap at 9:10 AM on October 18, 2022 [1 favorite]
Echoing what others say: FMLA is legally protected unpaid time away from work. The employee should file for FMLA leave to cover their ass, and take the paid time off as instructed by company policy.
posted by phunniemee at 9:34 AM on October 18, 2022 [3 favorites]
posted by phunniemee at 9:34 AM on October 18, 2022 [3 favorites]
Filing for FMLA is the only way to legally protect the time off. If the manager wants to “do right” by the employee, the manager will advise them to file for FMLA.
PTO is basically a handshake deal, unless you have a contract (and even then, who can hire more lawyers?). FMLA is specifically available to legally protect one’s hours and job in this circumstance. This is precisely why it exists.
posted by furnace.heart at 10:14 AM on October 18, 2022 [1 favorite]
PTO is basically a handshake deal, unless you have a contract (and even then, who can hire more lawyers?). FMLA is specifically available to legally protect one’s hours and job in this circumstance. This is precisely why it exists.
posted by furnace.heart at 10:14 AM on October 18, 2022 [1 favorite]
I just reread the question and you don't specify that you are the employee, so substitute "the employee" for "you" in my comment below.
FMLA is a federal right that you have, and filing the FMLA paperwork is protection for your employer. You have rights under the FMLA whether or not you file paperwork. Your employer has a responsibility to tell YOU when you are taking FMLA covered leave.
If you have a competent boss and HR, when you tell them 'I need time off to care for my relative, both in the short term and intermittently over the next X months,' they should send you FMLA paperwork right away.
Looking just at federal laws (since you don't mention a state), "sick leave" is not currently a federal regulation. It's really an accounting practice. So if the company requires you to use your sick leave in the first few weeks of FMLA that's their right. But taking sick leave doesn't really delay the clock for FMLA. It just provides you a period of paid leave instead of unpaid leave.
posted by muddgirl at 10:25 AM on October 18, 2022
FMLA is a federal right that you have, and filing the FMLA paperwork is protection for your employer. You have rights under the FMLA whether or not you file paperwork. Your employer has a responsibility to tell YOU when you are taking FMLA covered leave.
If you have a competent boss and HR, when you tell them 'I need time off to care for my relative, both in the short term and intermittently over the next X months,' they should send you FMLA paperwork right away.
Looking just at federal laws (since you don't mention a state), "sick leave" is not currently a federal regulation. It's really an accounting practice. So if the company requires you to use your sick leave in the first few weeks of FMLA that's their right. But taking sick leave doesn't really delay the clock for FMLA. It just provides you a period of paid leave instead of unpaid leave.
posted by muddgirl at 10:25 AM on October 18, 2022
This all depends on where the employee is located.
- In almost all jurisdictions (CA being the arguable exception) an employer is allowed to require an employee to use paid sick leave simultaneously with FMLA when the FMLA is for the employee's own illness or for family illness so if the employer requires it the employee cannot refuse.
- If it's incorrect that the employer requires simultaneous use AND if the employee is in a mandatory paid sick leave jurisdiction/industry or is a covered federal contractor then paid sick leave provides strong employment protections as well and if the employee thinks that they might need to save their 12 weeks of FMLA for other uses then they can just use accrued/available paid sick leave first. I haven't reviewed to make sure this site is accurate but on a quick skim it looks to have a pretty comprehensive list of the mandatory paid sick leave jurisdictions (which can be state, local, or industry based). Then once paid sick leave is exhausted they can use FMLA if more time is needed.
- If the employee is not in a mandatory paid sick leave jurisdiction/industry then they should apply for FMLA because any paid sick leave provided by the employer is just a matter of company policy and doesn't provide job protection.
posted by wuzandfuzz at 10:47 AM on October 18, 2022
- In almost all jurisdictions (CA being the arguable exception) an employer is allowed to require an employee to use paid sick leave simultaneously with FMLA when the FMLA is for the employee's own illness or for family illness so if the employer requires it the employee cannot refuse.
- If it's incorrect that the employer requires simultaneous use AND if the employee is in a mandatory paid sick leave jurisdiction/industry or is a covered federal contractor then paid sick leave provides strong employment protections as well and if the employee thinks that they might need to save their 12 weeks of FMLA for other uses then they can just use accrued/available paid sick leave first. I haven't reviewed to make sure this site is accurate but on a quick skim it looks to have a pretty comprehensive list of the mandatory paid sick leave jurisdictions (which can be state, local, or industry based). Then once paid sick leave is exhausted they can use FMLA if more time is needed.
- If the employee is not in a mandatory paid sick leave jurisdiction/industry then they should apply for FMLA because any paid sick leave provided by the employer is just a matter of company policy and doesn't provide job protection.
posted by wuzandfuzz at 10:47 AM on October 18, 2022
Response by poster: Just for some clarification:
* We are in California.
* The employee does have a contract and is unionized; sick leave is protected.
* We are understaffed and the employee is highly valued.
* When I have previously approached HR about intermittent FMLA leave, the disability HR person told me that intermittent leave does not exist and would not let me apply for it, and kept trying to force me into taking reduced hours even though I had a note from my medical team saying I needed intermittent leave. HR tends to dig in their heels rather than admit when they are wrong, so I ended up just giving up because I was so frustrated and it was a short-term need that my manager could accommodate.
posted by lapis at 11:04 AM on October 18, 2022
* We are in California.
* The employee does have a contract and is unionized; sick leave is protected.
* We are understaffed and the employee is highly valued.
* When I have previously approached HR about intermittent FMLA leave, the disability HR person told me that intermittent leave does not exist and would not let me apply for it, and kept trying to force me into taking reduced hours even though I had a note from my medical team saying I needed intermittent leave. HR tends to dig in their heels rather than admit when they are wrong, so I ended up just giving up because I was so frustrated and it was a short-term need that my manager could accommodate.
posted by lapis at 11:04 AM on October 18, 2022
This is what a union is for! Get the union rep in to demand HR follows the law.
posted by Bottlecap at 12:05 PM on October 18, 2022 [2 favorites]
posted by Bottlecap at 12:05 PM on October 18, 2022 [2 favorites]
This pdf on the Department of Labor's website entitled "What’s the Difference? : Paid Sick Leave, FMLA, and Paid Family and Medical Leave" has the following:
posted by slkinsey at 12:08 PM on October 18, 2022 [1 favorite]
FMLA leave is unpaid leave. However, workers may choose to, or employers may require them to, substitute accrued paid sick, vacation, or personal time for FMLA leave. Substitute means that the paid leave provided by the employer will run concurrently with the unpaid FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policies. Employers are also required to continue paying the employer’s share of workers’ group health insurance premiums on the same terms as if they were not on leave.(Emphasis added.)
posted by slkinsey at 12:08 PM on October 18, 2022 [1 favorite]
HR here- file your FMLA paperwork. I encourage everyone to file when they are legally eligible, even if "they don't need it", to set a standard for others within the organization.
If you file, and they deny it based on their interpretation of the statute (as alluded to above), you will have a paper trail that is essential if they decide that you have had too many absences and its time to be managed out.
posted by JennyJupiter at 6:15 PM on October 18, 2022 [3 favorites]
If you file, and they deny it based on their interpretation of the statute (as alluded to above), you will have a paper trail that is essential if they decide that you have had too many absences and its time to be managed out.
posted by JennyJupiter at 6:15 PM on October 18, 2022 [3 favorites]
Response by poster: Thanks, all. I'm the manager in this situation, which means I'm non-union, but I will talk to the employee when they return and at least suggest that they consider FMLA to protect themselves and maybe discuss it with their union rep, while also reassuring them I do not in any way hold their absences against them and am personally fine with them just using sick leave if that's what they choose to do. I appreciate you giving me a better sense of why it might be worth it for them.
posted by lapis at 8:08 PM on October 18, 2022 [1 favorite]
posted by lapis at 8:08 PM on October 18, 2022 [1 favorite]
I was encouraged by my manager not to use FMLA and when my manager very suddenly retired (not his plan, a health thing) it came back to bite me. Please do help your employee make sure they’re covered in case something happens. Thank you for being conscientious about this and looking out for your employee!
posted by Bottlecap at 9:16 PM on October 18, 2022 [2 favorites]
posted by Bottlecap at 9:16 PM on October 18, 2022 [2 favorites]
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posted by chesty_a_arthur at 8:15 AM on October 18, 2022 [1 favorite]