Legal Question in Medical Leave in Alabama

Employer has stated in employee handbook that vacation is accrued day by day...

They state that based on years of service (11 yrs) there is no waiting period for Short Term Disability...

During FMLA leave in April of 4.5 weeks they used all of my un-accrued vacation (leaving me with no leave available for the remainder of the year) prior to paying under STD...In 4 other FMLA experiences vacation was only used to the extent is was already accrued.

In pointing out the law and quoting our handbook and HR policies to my employer they are saying that because they allow employees to use vacation prior to accrual they can also pay out all unaccrued vacation as part of FMLA leave.

Below is the email I provided to my employer quoting our policies...my question is, Do I have any protection for my paid leave? Is there anything I can do to force them to re-instate my paid leave and swap the prior used (although unaccrued) vacation for STD?

____________________________________________________________________

HR -

Please understand, it is with all due respect and with the same vigor I have displayed in protecting and defending Compass for the last 11 years that I must respectfully disagree. I think the point that is being missed here is the statement in both our internal policy and the law that the substitution of paid leave for unpaid FMLA is paid out of accrued time. And the specific statement about the determination being made based on the employer's normal leave policy is incorrect...the exact verbiage in the CFR 825.207 section of the FMLA act is "the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The term "substitute" means that the paid leave provided by the employer, and accrued pursuant to the established policies of the employer"

Compass accrual policy defined in our handbook is:

"Accrual System Explained

You accrue vacation day by day. For example, by April 1, you have

accrued one-fourth of your year�s vacation. By July 1, you have

accrued one-half, and so on."

The key portion missing in your order of paid leave summary you quoted is the statement that "In the case of an employee's own personal illness, time off is paid from accruals in this order:..." Please see below (as copied directly from the handbook section C-11 as you partially-quoted):

In the case of an employee�s own personal illness, time off is

paid from accruals in this order: ...

1. Sick pay;

2. Emergency leave1;

3. Vacation pay;

4. Floating and in-lieu-of holidays;

5. Short-term disability, if eligible. See the Short-term

Disability heading in this section or visit CompassHR.com.

Otherwise, time away is unpaid if requested and

approved;

6. Long-term disability, if eligible. See the Long-term

Disability heading in this section or visit CompassHR.com.

Otherwise, time away is unpaid if requested and approved

...

While on family and medical leave, an employee may or may not

qualify for paid time off. The amount and type of paid time off

available depends on how much the employee has accrued and

what type of leave the employee is taking.

...

Compass� paid-leave policies apply to the types of paid leave that

may be available to employees in certain circumstances. Employees

who have been approved for a leave of absence (for example, family

and medical leave or personal leave) may be paid for all or a portion

of their leave time based on:

a) the provisions of these policies;

b) whether they qualify for various pay categories; (qualification for STD immediate, based on date of hire)

c) the amount of accrued time they may have available.

***If an employee is on a medical-related leave, the employee is

eligible to receive first any available sick pay and then may be eligible

for short-term disability payments or long-term disability benefits for

some or all of the medical-related leave period.

The portion you are quoting is specific to "leave of absence." This leave in question was not a "leave of absence" as defined in our policy but rather a medical leave. As stated (directly above) in the handbook, "if an employee is on a medical-related leave, the employee is eligible to receive first any available sick pay and then may be eligible for short-term disability payments..."

Section C-16 of the handbook pursuant to Short-Term disability does not state that all paid leave must be used before STD can be paid. In fact it only makes reference to an elimination period. The handbook only states that available paid leave is used during the elimination period. Please see C-16 in it's entirety below:

C-16 Short-term Disability

The purpose of the short-term disability program is to provide for

the temporary continuation of a portion of pay to eligible full-time

employees who experience periods of short-term disability as defined

for purposes of the program.

Based on service, a 45-calendar-day elimination period may apply

before the employee is eligible to receive short-term disability

benefits, which is equal to 60 percent of their base pay for the period

of eligibility. During this elimination period, employees use any

available sick pay (including emergency leave accrued prior to July 1,

1997), vacation pay and floating/in-lieu-of holiday pay.

For full information, please visit CompassHR.com.

Additionally, the CompassHR definition and qualifications section make no mention, much less requirement, of the exhaustion of paid leave prior to use. Due to my date of hire (July 16, 1998), the elimination period does not apply as shown from CompassHR below:

Short-Term Disability: Eligibility

Hire Date* Eligibility Waiting Period Elimination Period

All Employees Hired

Before May 1, 2001 None No elimination period.

All Employees Hired

On or After May 1, 2001 After 18 consecutive months of full-time service

immediately preceding the onset of the Disability. 45 consecutive calendar days.

*Hire date for employees of acquired companies is their date of hire at the acquired company.

According to the above statements, the full breakdown as written in CompassHR.com and defined requirements, I would go from available sick time to short-term disability. There is NO statement in either our employee handbook or CompassHR under the short-term disability sections that states that all leave must be exhausted, much less leave not yet accrued.

And the practice of paying out all vacation as you mentioned from section C-12 directly violates the law, the law supports the designation of benefits as follows...

The law states:

29 CFR 825.207 (d)

Leave taken pursuant to a disability leave plan would be considered FMLA leave for a serious health condition and counted in the leave entitlement....In such cases, the employer may designate the leave as FMLA leave and count the leave against the employee's FMLA leave entitlement. Because leave pursuant to a disability benefit plan is not unpaid, the provision for substitution of the employee's accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave...

And lastly, I have issue with the fact that this is a significant change from the prior FMLA leaves I have taken. In EVERY situation, I was paid vacation to the extent it was already accrued. There is not any change that I can see in our documented policies, handbook or CompassHR from prior FMLA situations to the one in question. This is not viewed as a benefit but rather a means to discriminate against an employee due to their use of FMLA...in no way would substituting my un-accrued, paid vacation time benefit me over the use of the short-term disability which I immediately qualified for (and is NOT written to be a requirement). Rather, this arbitrary, and illegal practice forces an employee to jeopardize their job for the remainder of the year in any situation they must be out of the office for any personal matter. The work-life balance Compass touts as a benefit to our employees is turned on it's head in this situation...in my opinion, Compass would prefer to force employees who otherwise qualify for other paid leave to exhaust all leave, effectively trapping them for the remainder of the working year. This is not supported by the law and is a gross miscarriage of our employee benefits policies.

Again, I mean no disrespect in my challenge of this situation. I am inclined to continue my dispute due to the blunt nature of the law with regard to this matter if we are unable to come to an amicable resolution. Please let me know if we can come to some sort of agreement on this matter at your earliest convenience.

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