Q&A: Foregoing family and medical leave

Q: Is family medical leave (FML) required when an employee has sufficient leave to cover the time off?

A: The employee cannot choose to forego FML and only use paid leave if concurrent use of leave is required by Policy DEC (LOCAL). When concurrent use of leave is required, both types of leave will be applied and the employee’s FML leave and paid leave balances will be simultaneously reduced by the number of days absent.
According to FMLA regulations, employees may choose whether or not to use paid leave at the same time as FML only if the district does not address concurrent use of leave in district policy (29 CFR §825.207).
Requiring the concurrent use of FML and other leave allows the district some control over the total amount of time the employee may be absent from work. Coordinating leave benefits allows districts to accomplish the following:
  • Limit the amount of time an employee can be absent
  • Minimize the impact of absences on the instructional program
  • Provide staff coverage when employees are absent for prolonged periods of time
  • Contain substitute costs
  • Ensure compliance with legal requirements
The requirement to use accrued leave also applies to compensatory time under the Fair Labor Standards Act. The district may require an employee to use accrued compensatory time (comp time) before paid leave. In addition, FMLA regulations allow unpaid FML to run concurrently with comp time (29 C.F.R. §825.207(f)). Requiring employees to use comp time reduces the district’s financial liability with regard to paying them for unused comp time upon termination or if another specific deadline triggers payment (e.g., the end of the fiscal year).