Question: Can my employer threaten, discipline, or fire me for requesting or using FMLA leave?
Answer: No.
It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA.
Examples include:
Refusing to authorize FMLA leave for an eligible employee,
Discouraging an employee from using FMLA leave,
Manipulating an employee’s work hours to avoid responsibilities under the FMLA,
Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions,
Counting FMLA leave under “no fault” attendance policies.
Forcing an employee to use FMLA leave or more FMLA leave than is necessary.
Question: My employer threatened to stop paying for my health insurance when I notified them about my FMLA leave. Can my job stop paying for my health insurance premiums if I use FMLA medical leave?
Answer: No.
First, your employer cannot retaliate against you for requesting or using FMLA leave whether by threatening to stop paying for your benefits or some other adverse action (for example, threatening you with discipline, demotion or termination).
Second, if your employer provided group health insurance, you are entitled to the continuation of that coverage during FMLA leave under the same terms as if you were still working. If the coverage extended to your family, that coverage must also be maintained during your FMLA leave. Of course, you are required to continue to pay your share of the cost of the premiums. If paid leave is substituted for FMLA leave, your share of premiums must be paid by the method normally used during paid leave (usually payroll deduction). If using unpaid FMLA leave, you must make arrangements to pay your normal share of the insurance premiums in order to maintain insurance coverage. Your employer must provide you with notice that the payment has not been received and allow at least 15 days after the date of the letter before coverage stops.
In some instances, your employer may choose to pay your portion of the premium, for example, to ensure that it can provide you with equivalent benefits upon return from FMLA leave. In that case, the employer may require you to repay these amounts. In addition, your employer may require you to repay the employer’s share of the premium payment if you fail to return to work following FMLA leave unless you do not return because of circumstances that are beyond your control, including a qualifying medical condition.
Question: Can I ask my employer to use my paid sick time or PTO at the same time as my FMLA leave?
Answer: Yes.
The FMLA entitles an eligible employee to 12 weeks unpaid leave. You can request to use your accrued paid leave (such as sick or PTO) concurrently with your FMLA leave to cover some or all of the period of FMLA leave. Your employer may agree or disagree depending on its normal policy, and the legality of the employer's response will depends upon whether it is applying its' policy uniformly. For example, an employer could not deny the request from pregnant or disabled employees, while granting it for a similarly-situated employee that is not pregnant or disabled.
In order to use accrued paid leave simultaneously, you must follow your employer’s normal rules for the use of that type of leave, such as submitting a leave form or providing advance notice. If you do not meet the requirements to take paid leave under your employer’s normal leave policies, you may still take unpaid FMLA leave. Paid leave taken for reasons that do not qualify for FMLA leave do not count against your FMLA leave entitlement.
Question: Can my employer require me to use paid sick time or PTO at the same time as my FMLA leave?
Answer: Yes.
Your employer can require you to use sick time/PTO concurrently with FMLA leave even if you do not want to do so. Many businesses have FMLA policies requiring employees to exhaust paid leave banks concurrently with FMLA leave. The Department of Labor expressly allows these policies under 29 CFR § 825.207. Once again, the legality of your employer's actions will depend upon whether it is applying this policy uniformly.
Question: Can my employer force me to use FMLA leave before I use all my available paid sick time and PTO?
Answer: Maybe.
Based upon guidance from the Department of Labor, in many jurisdictions, an employer is required to designate an FMLA qualifying absence as FMLA leave. Therefore, an employee cannot choose, and an employer cannot allow employees, to use some or all available paid leave benefits before designating an FMLA-qualifying absence as FMLA protected leave.
In these jurisdictions, once an employer has sufficient information to determine that a leave qualifies under the FMLA, it must designate the leave as FMLA leave and notify the employee accordingly, normally within five business days. The DOL reasoned that “neither the employee nor the employer may decline FMLA protection for that leave,” because the FMLA regulations prohibit an employee from waiving prospective rights.
However, in Arizona, the current state of the law is that an employee can decline to designate leave as FMLA leave and take paid vacation or sick time off first, thereby preserving the employee's full 12 weeks of FMLA leave for future use.
In Escriba v. Foster Farms Poultry, Inc., the 9th circuit found that employees have the right to decline FMLA leave. Therefore, your employer may not require you to exhaust FMLA leave concurrently with paid leave if you decline to use FMLA leave.
However, you should be aware that declining FMLA leave means you will not be entitled to the FMLA’s protections. Even so, you may choose to defer FMLA leave until you exhaust your paid leave banks, thus leaving a cushion of leave, albeit unpaid, for future needs. Additionally, the use of earned paid sick time comes with its own protections in Arizona. See Paid Sick Time
Question: Is my employer required to give me my old job back when I return from FMLA leave?
Answer: No, not your exact job but an equivalent job.
When you return from FMLA leave, you must be restored to the same job or to an "equivalent job". You are not guaranteed the actual job held prior to the leave. An equivalent job means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location).
Equivalent pay includes the same or equivalent pay premiums, such as a shift differential, and the same opportunity for overtime as the job held prior to FMLA leave. You are entitled to any unconditional pay increases that occurred while you were on FMLA leave, such as cost of living increases. Pay increases conditioned upon seniority, length of service, or work performed must be granted only if employees taking the same type of leave for non-FMLA reasons receive the increases. Equivalent pay includes any unconditional bonuses or payments. If you do not meet a specific goal for achieving a bonus because of taking FMLA leave, however, your employer must only pay the bonus if employees taking the same type of leave for non-FMLA reasons receive it. For example, if you are using accrued paid sick leave concurrently with unpaid FMLA leave and other employees on paid sick leave are entitled to the bonus, then you must also receive the bonus.
All benefits you accrued prior to a period of FMLA leave must be restored to you when you return from leave. An employee returning from FMLA leave cannot be required to re-qualify for any benefits the employee enjoyed before the leave began.
Question: Can my employer discipline or fire me while I am on FMLA leave?
Answer: It depends.
Your employer cannot discipline you or terminate your employment because you requested or used FMLA leave. However, merely being on FMLA does not provide complete immunity to discipline or termination. If your employer can show the basis for discipline or termination arose before it was aware of your request for FMLA, it may still have grounds to impose discipline or termination. Nonetheless, an employer treads on dangerous ground whenever it takes an adverse action against an employee who has recently, or is currently, engaging in protected activity, such as using FMLA protected leave.
An employee on FMLA leave is not protected from actions that would have affected him or her if the employee was not on FMLA leave, e.g. a shift has been eliminated, or overtime has been decreased. In such case, a employee would not be entitled to return to work that shift or the original overtime hours. If an employee is laid off during the period of FMLA leave, the employer must be able to show that the employee would not have been employed at the time of reinstatement.
An employer may also deny restoration to a “key” employee under certain circumstances. A key employee is a salaried, FMLA-eligible employee who is among the highest-paid 10 percent of all of the employer’s employees within 75 miles. To deny restoration to a key employee, an employer must have determined that substantial and grievous economic injury to its operations would result from the restoration, must have provided notice to the employee that he or she is a key employee and that restoration will be denied, and must provide the employee a reasonable opportunity to return to work.