Legal Question in Medical Leave in Virginia
Get axed even with earned leave remaining???
My employer interprets FMLA and leave policy as meaning that after 12 weeks of being on extended sick leave, the worker's employment can be terminated, even though the worker has, over the years, earned and accumulated weeks or months worth of sick and vacation leave to cover the worker far beyond the 12 weeks earned paid)sick leave already taken. Is this interpretation correct?
1 Answer from Attorneys
Re: Get axed even with earned leave remaining???
Your employer is wrong; the federal statute is quite clear "that an employee must be restored to the employee's orignal job or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment."
The only exception to the above is that the employer "may refuse to reinstate certain highly-paid key employees after using FMLA leave where restoration to employment will cause substantial and grievous economic injury to its operations."
The employer can, however, require that an employee first use his or her accumulated sick and/or vacation leave before being entitled to utilize FMLA leave.
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