Do I Have to Use my Vacation before I Apply for FMLA?

You do not have to use all vacation (or PTO) before filing for FMLA leave. In fact, using up all your vacation or PTO time first can negatively affect both the employee (by potentially impacting chances of advancement) and the employer (FMLA lawsuits can be filed).

When employees or their family members are faced with a severe illness or if the employee is pregnant or becoming an adoptive parent, many begin the process of filing for FMLA leave. Unfortunately, those with legitimate, qualifying reasons to apply for leave under the FMLA are often informed by HR that they must use up their vacation or PTO time first. This can negatively impact both the employee and the employer.

Negative Impacts for Employee

If the employee uses up all of their vacation and PTO for doctor visits, sick days, and the like, as recommended by HR, the employer likely assumes that the employee is taking unprotected leave. Because the employer is not aware of the actual reason for the employee’s days off, it could negatively impact the employee’s chances for advancement and/or positive reviews.

Negative Impacts for Employer

The employer has legal duties under FMLA. In some cases, the employee may be eligible for more leave than is legally required of an employer to give if the employer was notified too late of the employee’s situation. In addition, if the employee’s leave was not considered FMLA leave, but should have been, and that leave is held against the employee, it is possible for an FMLA lawsuit to be filed.

Employees Who Qualify for FMLA Leave

Not everyone immediately qualifies for FMLA leave.

Employees who qualify to apply for FMLA leave must meet the following standards:

  • Been employed for a minimum of a year
  • Worked a minimum of 1,250 hours in the past year
  • There are 50 or more employees of your same employer within 75 miles of your work location

Once you are diagnosed with a severe medical condition, consider applying for intermittent leave under the FMLA. Contact a Los Angeles employment law attorney for more information!

Have you been denied leave under the FMLA? If you are a qualifying employee, don’t hesitate to contact Alan Burton Newman, PLC for more information about your legal options.