The question presented is whether a Company can force and unilaterally decide to allocate time off for FMLA and or sick leave/PTO. The assumption is made, because of the liberality applied to employees, and we are dealing with a “serious health condition”.
FMLA:
It might be argued by the employee that they can decide to take unpaid medical leave and not exhaust FMLA. In other words, save their FMLA rights for the future. But the case law is to the contrary. An employer can force the use of FMLA.
On this precise issue, some courts have held forced FMLA leave is permissible. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir.2006) (“[F]orced leave, by itself, does not violate any right provided by the FMLA.”); Foster v. New Jersey Dep’t of Transp., 255 Fed.Appx. 670, 671 n. 1 (3d Cir.2007) (same).
Wysong v. Dow Chemical Co., 503 F.3d 441 (6th Cir.2007), stated an employee who alleges she was forced unnecessarily to take leave may state “a type of interference claim.” (at p. 449). But a close examination indicates the cause of action ripens only if the employee is wrongfully turned down for FMLA in the future–in other words, when the person later wants to use it.
So there is authority for forced use of FMLA. And because it is 12 weeks per year, it is unlikely it would be exhausted and there would be plenty of time left for its exercise in the future.
PTO/Sick Leave:
It is well established that an exempt employee cannot be subject to partial day deduction of his salary for time-off. If that does occurs repeatedly, the person will then be considered nonexempt. But if full days are taken off, this rule does not apply.
It would also appear logical that if the employee has continued to receive his salary for the periods of time off, the Company could deduct from his PTO and sick leave. After all, the Company is paying him for the time off. It would give the employee an unfair advantage: for every day off, he would not only get paid, but still accrue PTO.
But there is a slight catch. Under a California Labor Commissioner Guidance Memo, you have to give the employee at least 90 days advance notice that you are making these deductions from the PTO or sick leave. That notice could be in the employee handbook. If it isn’t, you have to give him a separate notice and then wait for 90 days.
Correspondingly, if the employee has not been paid for the time off, the deduction should not be made. The employee for whatever reason has decided not to receive pay for this time off and that would appear to be his right. By not getting paid, the employee would have the right to continue accumulating the sick leave and PTO.
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