Q. In our organization, employees going on FMLA medical leave due to a personal illness (not for family) typically start receiving Short-term disabily (STD) on the 31st day of leave. Any paid leave an employee receives within the first 30 days of medical leave is paid, utilizing his or her own accrued sick or vacation leave. If an employee (let’s say for maternity) is given a clearance to return to work in six weeks, her STD pay stops at that point, as well. If she wants to stay out past the approved six-week period, are we required, as the employer, to allow her to utilize any residual sick or vacation leave she may still have on the books? Or, is there any law indicating that we cannot block her from being able to use time that she has accrued? – S. Williams, Virginia
A. In Virginia, an employee earns and is able to use vacation and sick leave in accordance with the employer’s policy. So, for example, the employer can say that unused vacation will not be paid out at the time the employee resigns, or that the employee cannot use more than 30 days of paid leave on a single absence, or pretty much whatever the employer wants as long as the employer and employee agree on that policy and the policy is applied in a nondiscriminatory manner.
If your policy currently places no limits now on how and when an employee can take paid time off, however, then no, you cannot block this employee or other employees from using their accrued leave. You can make changes to the existing policy going forward, but whatever changes to the policy are made, you will need to impose it even-handedly on all employees.
So, for example, if you change the rule during the employee’s existing leave, you may face not only a breach of contract claim, but the change in policy may also be perceived as retaliation for taking FMLA leave, or as pregnancy or gender discrimination.
In the future, however, perhaps you could achieve your goal by capping everyone’s ability to accrue paid leave once they have 30 days. You may wish to consult with counsel to design a policy that legally achieves your goals while retaining a competitive benefits program.
Finally, for others who may be reading this response, please note that many, if not most states have laws that provide that vacation and sick pay are a form of wages and subject to state wage and hour law. It’s important to know the law of your jurisdiction.
