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While Molly’s FMLA certification indicated that she would be incapacitated for about a week, social media posts showed her energetically dancing at an annual festival during the leave. Employees who believe that they may take the 12 weeks of FMLA leave for reasons that essentially equal a vacation are generally misguided.

Handling suspicious leave requests

Employees will sometimes indicate the need for FMLA leave, only to have you learn that the real reason they were absent was because they were really on vacation. If, for example, you have an employee who requests FMLA leave every year at the same time, particularly around holidays or events, you may want to do some investigating. Recheck the certification. If you have evidence that supports it, such as if you have information that casts doubt on the stated reason for the leave, ask that the employee provide a recertification, and ask the health care provider if such a leave schedule is consistent with the employee’s (or family member’s) condition.

A pattern of requesting FMLA leave the same time every year is one of the red flags that an employee could be abusing his or her FMLA leave entitlement.

Substituting vacation during FMLA leave

If an employee has some accrued vacation or other paid time off available, the employee has the right to use it while on otherwise unpaid FMLA leave. This is referred to as “substituting.” The employee is using both FMLA leave and vacation/PTO simultaneously, as otherwise the FMLA leave is unpaid.

If employees do not choose to substitute accrued paid time off, you, as the employer, may require that they do. Requiring this can cause employees to have more stake in the game and could help reduce the risk of the employees abusing their FMLA leave rights. It also reduces the total amount of time employees will be away from work, since the employees won’t be able to take FMLA leave on top of PTO/vacation.

Earning vacation during FMLA leave

Simply put, eligible employees are not entitled to accrue benefits such as vacation during periods of unpaid FMLA leave. An important point is that the period is unpaid FMLA leave. If the leave is paid, such as in situations where employees are substituting accrued PTO or other time off, then your policies regarding accrual during other forms of paid leave would also apply to employees, even if that time off also qualifies for FMLA leave. You may not discriminate against employees because they take FMLA leave.

Some employers require employees to work a certain number of hours before being eligible for PTO/vacation. This might even be the case in some collective bargaining agreements. If paid leave benefits such as vacation are predicated on a pre-established number of hours worked and employees do not have enough hours because they took unpaid FMLA leave, they would not be eligible for the PTO/vacation.

Again, this is referring to unpaid FMLA leave. If paid leave was involved, you would need to refer to your policies regarding employees who take leave for reasons that do not qualify for FMLA leave.