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Does Disability Leave Count Against FMLA?

While volunteering at an employment law legal clinic recently a prospective client called in about a problem she was facing at work. The woman was approved for leave under the Family Medical Leave Act ("FMLA") as a caregiver for her son but also needed to have surgery. Her employer told her that any time off for the surgery and recovery would also count against her FMLA leave and she wanted to know if that was legal.

FMLA provides certain employees with up to twelve (12) workweeks in a twelve (12) month period, of unpaid, job-protected leave. The FMLA applies to all public agencies and private employers with more than fifty (50) employees who work at least twenty (20) work weeks. To be eligible for FMLA leave, an employee must work for a covered employer for at least 1,250 hours in the past twelve (12) months, and work at a location where at least fifty (50) employees are employed at that location or within seventy-five (75) miles of that location.

FMLA can be granted for 1) birth of a son or daughter; 2) placement of a child for adoption or foster care; 3) care for an immediate family member with a serious health condition; and, 4) when the employee is unable to work because of a serious health condition. Upon return from FMLA leave, an employee must be restored to his or her original job, or to an "equivalent" job, which means a position that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions. An employer cannot discriminate or retaliate against an employee for taking FMLA leave.

Many types of leave including accrued paid leave, disability, worker's compensation and pursuant to an employer's policy may be counted against an employees' available FMLA time. Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Leave taken pursuant to a disability leave plan would be considered FMLA leave for a serious health condition. In such cases, the employer may designate the leave as FMLA leave and count the leave against the employee's FMLA leave entitlement. Similarly, an employer can require FMLA and worker's compensation leave to run concurrently if the reason for the absence is due to a qualifying serious illness or injury. Additionally, maternity, paternity, and pregnancy leave can be counted against FMLA. Also, spouses employed by the same employer may be limited to a combined total of twelve (12) workweeks of family leave unless each has a separate serious medical condition. One important caveat is that if the employer intends to count other leave types against your FMLA time, you must be notified in writing of the designation. With few exceptions, if the employer fails to notify you that the leave will count against your FMLA time, the employer cannot count leave as FMLA leave retroactively.

In sum, an employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period, regardless of the reason or reasons for same. If the employee has to use leave for different reasons, each separate leave reason may all be counted towards the same twelve (12) week entitlement period.

If you have a question about FMLA, contact us at to discuss your legal rights.

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