Legal Question in Medical Leave in Indiana

does accrued paid time off go against 12 weeks?

I was in a car accident (November 24, 1997) and crushed my heel requiring surgery. I work for a medical organization as an X-Ray Technition and am normally on my feet all day. The operation was 9 days (December 3, 1997) after the accident. My company told me I must first use up my accrued paid time off during the first 30 days of my disability and then I will receive partial pay after that. Now they are telling me that if I don't come back to work by February 16, 1998 I will lose my job. My doctor says I should not be putting full weight on the foot until 12 weeks after the operation or February 25, 1998. I could probably pull that up a couple of days but not likely 10. Does not my 12 weeks family medical leave act start after I use up my accrued PTO (paid time off) which to me seems the same as if I was still there for that extra week but just on vacation? Can they fire me for not coming back to work on February 16, 1998? They say I must come back to my job fully recovered not on crutches or partially immobile. I would be willing to go back now and do some limited work.

Time Line Summary: Accident 11/24/97 Operation 12/03/97 Back to Work 02/25/98 Accrued Paid time off = 47.34 hours Company says times up 02/16/98


Asked on 2/04/98, 3:48 pm

1 Answer from Attorneys
Stephen Scapelliti Law Office of Stephen Scapelliti, Esq.

Accrued paid time and the FMLA

The regulations for the Family Medical Leave Act specifically address this issue of notice from the employer of an intent to apply paid time toward FMLA leave. If the employer knows that the reason for the leave is a reason that would entitle the employee to FMLA leave (such as a serious medical condition of the employee that prevents the employee from performing his/her duties), then the employer must promptly notify the employee (within 2 business days, absent extentuating circumstances) that the paid leave is designated and will be used as FMLA leave. The notice from the employer to the employee may be oral, but it must be confirmed in writing no later than the following pay day (if the following pay day is less than one week later, then the written confirmation must be sent no later than the subsequent payday. If the employer has told the employee to use paid leave, but failed to alert the employee that it would count toward FMLA leave, then arguably the employee is entitled to tack the paid leave on to the 12 weeks of FMLA leave. You should contact an attorney in your area to determine whether the particular facts of your circumstances entitle you to insist on the 12 weeks running from the date of the surgery.

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Answered on 2/10/98, 11:24 am


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