Do employees accrue vacation while on FMLA leave?
Leave under the federal Family and Medical Leave Act (FMLA) is often seen as an employee benefit. This makes sense as employees do benefit from the leave protections. While employees are on FMLA leave, however, they’re not generally entitled to accrue additional benefits, like vacation.
While the FMLA has limits for employees who return to their jobs after FMLA leave, employees aren’t entitled to accrue seniority or gain other employment benefits during any period of unpaid FMLA leave.
Benefits before leave began remain intact
Employees must keep any company benefits they had before FMLA leave began (e.g., paid vacation, sick time, etc.). They may use accrued paid leave with unpaid FMLA leave, but they still have some income.
If employees are on unpaid FMLA leave, employers may have a policy that employees are not eligible to accumulate sick leave while on unpaid FMLA leave, as long as all employees on an unpaid leave status do not accrue sick pay either. In other words, employees on similar leaves must be treated the same way.
Policies are key to enforcing the rules
Employer policies govern whether employees on FMLA leave continue to accrue more leave. Often, policies allow employees on paid leave to continue accruing more paid leave, while employees who are on unpaid leave don’t.
Whether the leave is paid or unpaid, employers must treat employees on FMLA leave the same way they treat employees on non-FMLA leave. Otherwise, they would be considered to be discriminating against employees on FMLA leave, thus violating the FMLA.
Here’s a quick breakdown:
- If employees on non-FMLA unpaid leave would accrue more unpaid leave, employers must allow employees on unpaid FMLA leave to accrue more unpaid leave.
- If employees on non-FMLA paid leave are entitled to accrue more paid leave, when employees use paid leave (e.g., sick, vacation, PTO) for otherwise unpaid FMLA leave, employers must allow employees to accrue more paid leave during the FMLA leave.
Specifically, the regulations state: “An employee's entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).” Reference: 29 CFR 825.209(h)
Key to remember: Whether employees accrue paid time off during FMLA leave (paid or unpaid) is up to employer policies, but employers must treat employees on FMLA leave the same as employees on non-FMLA leave.