Sick and Tired of Using Vacation for FMLA Time

When I put in for leave under the Family Medical Leave Act, the company told me that I have to use all my vacation time and personal days. Can they really do that? I thought the whole point of FMLA is that it’s extra, unpaid leave.

– Ticked off in Tennessee

Ticked Off,

I don’t blame you for being ticked off. Can your boss get away with it? That depends. Here’s what you need to know.

When the FMLA was being debated by Congress, big business demanded the right to force employees to substitute paid leave (vacation, personal time, etc.) for unpaid FMLA leave. Obviously, the goal is to discourage us from taking FMLA leave at all.

The employers got their way with the politicians—but there are important restrictions on management’s ability to make us burn our paid leave.

Employers can’t make use our vacation time if our contract—or past practice—gives us the right to choose our vacation schedules. And that’s the case at most Teamster jobs.

The bad news is that some Teamster contracts include language that waives this protection, including our master agreements in freight, carhaul and at UPS.For example, Article 16 of the UPS agreement says, “The Employer may require the employee to substitute accrued paid vacation or other paid leave…”

“May” doesn’t mean “must” and some managers will do the right thing. But UPS has used this language to screw a lot of Teamsters.

The good news is that when you give FMLA notice, the company has to tell you within two days that they will force you take paid leave.If the company fails to notify you within two days, they cannot retroactively make you use paid leave for FMLA leave you’ve already taken. But they can make you use paid leave for any additional FMLA leave you take after they notify you. (Troublemaker doesn’t write these rules; he just tells you like it is).

Finally, management can’t make us use vacation time during periods when we wouldn’t be allowed to take vacation—for example, during the portion of peak season when UPSers can’t take vacation.

The best FMLA guide, hands down, is the FMLA Handbook by attorney Robert M. Schwartz---available for thirteen bucks from TDU. The Teamster Troublemaker’s copy is dog-eared and coffee-stained—and carved full of notches for every time I’ve won an FMLA grievance.

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