In HR Dive's Mailbag series, we answer HR professionals' questions about all things work. Have a question? Send it to [email protected].
Q: An employee taking time off for childbirth wants to first use PTO, followed by 12 weeks of FMLA. Is this allowed?
"Generally, no," according to Stephanie Lowe, associate at Liebert Cassidy Whitmore.
"If the employee’s time off is for a qualifying reason such as childbirth, then," she said, "the employee cannot delay the start of their FMLA leave by first using vacation, because employers have a legal duty and are responsible in all circumstances for designating leave as FMLA-qualifying."
Once an employer has enough information to determine that an eligible employee is taking leave for a FMLA-qualifying reason, Lowe told HR via email, U.S. Department of Labor regulations require it to notify the employee that the leave will be designated and counted as FMLA leave.
An employer may not delay designating leave as FMLA-qualifying, even if the employee prefers that the employer delay the designation, Lowe said, citing DOL opinion letters.
Of course, nothing prevents an employer from allowing an employee to use available PTO off after they exhaust their FMLA allotment, but that time wouldn't be protected by the FMLA.
