Under both the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), a qualifying employee is entitled to 12 weeks of unpaid protected leave. An employee is eligible to take FMLA or CFRA leave if: (1) the employer has at least 50 employees within a 75-mile radius of employee’s worksite and (2) the employee has worked for the employer for at least 12 months, even with a break in service. Although the employer is not required to pay an employee while he or she is on approved FMLA or CFRA leave, an employer may require an employee to use any accrued vacation, paid time off, or sick days concurrently with their approved FMLA or CFRA leave.
It is not illegal for the employer to enforce a policy requiring an employee on FMLA or CFRA leave to use their accrued vacation days, paid time off, or sick days concurrently with their approved FMLA or CFRA leave. For example, if an employee were on approved FMLA or CFRA leave for 12 weeks and had three (3) weeks of accrued vacation days, paid time off, or sick days, it is perfectly legal for the employer to require the employee to use the accrued time during the first three (3) weeks of the approved FMLA or CFRA leave. In other words, those three (3) weeks would run simultaneously with the approved 12 weeks of leave and does not mean that the employee is entitled to three (3) extra weeks of leave. Although the application of accrued vacation days, paid time off, or sick days to FMLA or CFRA leave is different for every employer, it is important to note that an employer may enforce a requirement to use such accrued time simultaneously with the FMLA or CFRA leave even if the employee did not elect to do so during his or her approved leave. However, depending on the size of the employer, the employee’s job duties, and whether it is possible for the employer to hire a temporary employee to perform the employee’s duties while that employee is on approved leave, additional days off may be considered reasonable accommodation. Therefore, you may want to consult with an experienced employment lawyer about whether you are entitled to additional days off even after your accrued vacation, paid time off or sick days is applied during your approved FMLA or CFRA leave.