Legal Question in Medical Leave in Florida

Re: Can they take away my Vacation

Although the employer may substitute paid leave such as vacation for unpaid FMLA leave, that is not the end of the story. The FMLA regulations are found at 29 C.F.R. (code of federal regulations) part 825. (You can find the CFR online.) Section 825.208(c) says that if the employer elects to substitute paid lave for the unpaid FMLA leave (such as vacation), that decision must be made within 2 business days of the time you told the employer that you needed the leave (or within 2 days of their determining the leave is FMLA-protected, if they did not initially have enough information to decide).

So, if they made the decision to substitute your vacation later than 2 days after you requested leave, you can argue that they may not do so. If they disagree, you can file a free complaint with the U.S. Dept. of Labor (visit dol.gov for info).

It sounds like they may have made the decision late because they are claiming you have excessive absenteeism. They may not hold your FMLA absences against you - those have to be treated as if they did not occur - that is the whole point of FMLA protection. So, if they are taking action against you because of the absences, they are arguably violating the FMLA in more than one way (i.e., both taking action against you and applying vacation leave too late).

Also, if you are a union member, substitution of paid leave may not violate the contract. For example, the contract may call for certain times when vacation will be taken. The company could not force you to use paid leave if it did not fall within the prescribed time.

If you feel the contract was violated, talk to your union and file a grievance.

Also, if you are entitled to sick leave and your FMLA situaiton comes under the sick policy, you arguably are entitled to sick pay as well as the vacaiton pay, even if the employer wants to apply vacation leave too. Otherwise, the employer would be denying you a benefit because of your FMLA leave, which is illegal under the FMLA. (These are tricky issues, but that is a legitimate argument on your behalf.)The employer will say you can only get one type of leave, but I would argue for both.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon

The Sheldon Law Firm

CAVEAT: This is only general advice based on limited facts and knowledge of the situaiton. It thus can not be relied upon as legal advice nor it the author responsible or liable for any actions by the parites involved in the matter.

Re: Can they take away my Vacation

Your employer has the right to substitute paid time off (such as vacation time and sick time) for the unpaid leave time to which you are entitled under the FMLA.

For more information about the FMLA, you can visit my site at www.memphisemploymentlawyer.net or the Department of Labor's website at www.dol.gov.