On FMLA Leave, What Is Paid First: Vacation Time or Sick Pay?

Jupiterimages/Photos.com/Getty Images

The Family and Medical Leave Act was enacted into law on August 5, 1993, and helps workers balance work and family obligations. Under FMLA, an employee can take up to 12 weeks of unpaid time off each year that relates to certain family and medical obligations, such as the birth of a child, in the time of a serious illness or to care for an immediate family member with a serious illness, according to the United States Department of Labor. Under FMLA protection, an employee is guaranteed he will have a job when the leave ends. The act applies to all companies -- public and private -- that have more than 50 employees.

Using Paid Time

Generally, FMLA leave is assumed to be unpaid time off. The law, though, does allow for an employee to use “accrued paid leave” concurrently with FMLA so that a worker is protected by the law and still earns pay, according to the U.S. Department of Labor. An employee or employer can opt to use accrued paid leave with FMLA, but this decision must be made before leave time begins. The type of paid leave used -- vacation, personal or sick time -- is not regulated and should be decided on by the employer and employee.

Vacation

Any paid vacation time that has already been earned can be used with FMLA leave, according to the U.S. Department of Labor. Vacation time that has not yet been earned is not applicable. Some employers have policies that state accrued paid vacation time must be taken concurrently with FMLA leave. This minimizes the amount of time off a person can take. Companies without such policies may allow a person to take 12 weeks of leave under FMLA and then grant vacation time after that.

Sick Time

An employee can also use sick pay benefits during FMLA leave. The rules are the same as if vacation time is used with one key contingency: Many companies only apply sick pay rules if an employee is sick, according to the U.S. Department of Labor. In this situation, if FMLA leave is taken to care for a family member sick pay can not be used concurrently.

Eligibility

In order for an employee to take any leave under FMLA, he must meet eligibility requirements. An employee must have been employed for a company for 12 or more months, worked at least 1,250 hours and works at a location with 50 or more employees (or within 75 miles of that location). An employee can take up to 12 weeks of FMLA leave each year for the birth or adoption of a child, to care for an immediate family member with a serious illness or to take care of his own serious illness. Employees should inform an employer of intent to take FMLA leave; time off does not have to be taken as 12 consecutive weeks.