Legal Question in Medical Leave in Florida

Re: Vacation Rights under the Family Leave Act

I think your question combines several issues, so let me see if I can address the items I think you need answers about.

First, FMLA-protected leave is not paid. You may allow an employee to use vacation or sick leave or other types of paid leave concurrently, but there is no requirement that FMLA-protected leave be paid.

Second, a person needs to have been with a company for 12 months total (not continuous), and to have worked (actual work - not vacations or other time off) at least 1250 hours in the 12 months prior to the start of the requested leave, in order to be eligible for FMLA protection at that point.

So, if she does not meet that requirement due to the two months off or any other reason, she does not get FMLA protection until she does. She can still take leave under your regular policies (vacation, LWOP, etc.) - it's just not protected.

Third, if you mean that she does not qualify for paid vacation because of the two months off, then that is a separate issue from the FMLA. You are entitled to apply your leave policy and deny paid leave if it has not been earned. But she can still get FMLA protection and use LWOP, sick leave or other leave you may offer for which she is qualified.

Whether you are talking about FMLA protection or paid leave or any other leave, you do not have to waive the requirements for any of those because of the death.

Of course, you have to treat her the same as all other employees. So, if you have waived your rules for other sympathetic situations, such as someone getting cancer treatments (or for other reasons), then you might want to do it for her to make sure she is not discriminated against on the basis of race, age, sex, religion, etc. That would be separate protection apart from the FMLA.

If you feel your company needs legal counsel for this or other labor and employment matters, feel free to email directly to me. I'm sure I can help while keeping costs down.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon, Esq.

[email protected]

The Sheldon Law Firm

Caveat: This is general advice only and should not be relied upon as legal advice because all facts and circumstances are not known to the author.