Legal Question in Medical Leave in Maryland

Re: Pay for FMLA

The Federal FMLA, 29 C.F.R. � 825.220(c), states that "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions," and 29 C.F.R. � 825.220(b), states that "any violations of the Act or these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act," and " 'interfering with' ... would include manipulation by a covered employer to avoid responsibilities under the FMLA."

An employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions. Interfering with would include manipulation by a covered employee to avoid responsibilities under the FMLA.

The employer may not intentionally manipulate the FMLA to frustrate or avoid FMLA responsibilities.

Each case is fact specific, it is unable to tell from your email whether the policy is proper in this situation.

Re: Pay for FMLA

The FMLA specifically allows employers to mandate that employees use their paid leave to cover FMLA time off. However, you should be able to use sick time for any reason that the employer's policy allows (your illness, a child's illness, etc.), before having to use personal or vacation time. This is because you are entitled to the sick time by virtue of working and earning it, as if FMLA does not exist. The employer should not condition sick leave use on the use of other paid FMLA leave first. That is arguably discriminatory under the FMLA.

This is a complicated area because the regulations are lengthy and not easy to work through. My guess is that the employer first saw that they can force employees to use personal and vacation days which is allowed by the regs. But then they confused the issue and took it one step further by forcing the use of those days before sick time is used, even though the regs do not provide for such a policy.

You might want to try to have a conversation with HR and point out that this policy seems to be in conflict with the FMLA regs. Ask them to review the matter. Perhaps cooler heads will prevail. (But be calm and diplomatic, not confrontational or belligerent. Don't jeopardize your job over this issue.)

If you find that you need legal help, please call for a free consultation.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

17804 St. Lucia Isle Drive

Tampa, FL 33647

813.986.7580

(f) 813.986.7489

(Admitted in Fl., MD, D.C., and Pa.)

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Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.