Ask HR: Why Do I Have to Use My Paid Leave Before FMLA Leave?

​SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, is answering HR questions as part of a series for USA Today. 

Do you have an HR or work-related question you'd like him to answer? Submit it here. 

I received approval to apply FMLA to my current leave. However, one stipulation says I must apply my paid leave before using my FMLA leave. Is this normal? Is this a loophole in the FLMA policy? Can an employer require the use of paid leave while an employee is on FMLA leave?–Talia

Johnny C. Taylor, Jr.: Differentiating between the Family and Medical Leave Act (FMLA) regulations and your employer's policy can often be confusing and sometimes frustrating. Employers that elect to offer paid leave set the rules for its usage within regulatory guidelines. With that, the FMLA gives employers the option of requiring the use of paid leave. To clarify, you would receive pay as prescribed in your employer's policy during, not before, your unpaid FMLA leave.

The initial intent of the FMLA was to preserve workers' jobs and benefits when they encountered family or health issues. Under the direction of the Department of Labor, it provides certain employees with up to 12 weeks of unpaid, job-protected leave per year and requires employers to maintain group health benefits. As presently constructed, it does not solve every situation an employee may encounter, but it is undoubtedly a step in the right direction for employees and their families.

Remember, as required by law, your employer must advise you of your right to use paid leave, indicate whether your employer will require the use of paid leave and list any conditions related to the use of accrued leave. Be sure to review your employer's paid-leave policy. If your employer does not have a policy or past practice of requiring paid leave, the regulations permit you to choose to use your accrued paid leave for unpaid FMLA leave.

Whether required by your employer or chosen by you, you would receive pay according to your employer's paid-leave policy, and your paid-leave time would count against your 12-week FMLA entitlement.

While allowed in most circumstances, there are certain limitations when the use of accrued paid leave is not allowed. Suppose you receive wage replacement through a disability benefit plan or a workers' compensation program. In that case, your employer may not require, and you wouldn't be allowed to use, accrued paid leave during any FMLA leave.

Alternatively, if your employer does not require substitution and you do not choose to use accrued paid leave during FMLA leave, you will remain entitled to all the paid leave earned or accrued under the terms of your employer's plan.

If you have questions about how FMLA can best work for you, reach out to your HR team. The Department of Labor website also has comprehensive details on FMLA.

I am an hourly employee at a distribution center in Ohio. I work four 10-hour shifts a week. I receive paid 15-minute breaks and unpaid one-hour lunches. My employer requires us to stay on the premises during our shifts, even during unpaid lunches. Is this legal?–Naomi

Johnny C. Taylor, Jr.: Yes, it is legal. Federal and Ohio meal and rest break regulations do not prevent employers from requiring employees to remain on the premises during breaks and lunch. Going further, neither federal nor Ohio statutes require companies to provide any meal or rest breaks, although most companies do.

Many companies will not allow employees to leave the worksite during breaks to improve the chance employees will return on time. For them, it is often a performance issue. On the other hand, you may have a personal errand to run or want to get away from work to clear your mind.

You may feel understandably frustrated with this policy, but ultimately, your company is handling meal and break periods legally.

While there aren't any legal remedies, you may still be able to find a suitable resolution. If you must leave the worksite for personal reasons, speak with your manager and see if they can make an accommodation. Should you find other workers who oppose the policy, you could bring it to management's attention and propose solutions. I hope you and your employer find a mutually beneficial arrangement.