This is an area that I am not familiar with at all and need help.

I am going out for surgery on Monday which will require that I be out of work for 2 weeks. Therefore, I will be on short-term disability (NY). My employer is stating that I must exhuast my sick, personal and/or vacation time to cover for the first week while I am out. They will use sick time first and then I have to choose which they use next. Obviously I would use what is left in personal and then vacation. However, I have a serious issue giving up vacation time for this. Is this allowed? I told them I would rather take it unpaid and they said I couldn't. If I use my sick time, personal and then tap into my vacation- I won't have the vacation I planned later this year. So, I am penalized for having something medically wrong with me and need surgery.

I seem to remember reading that an employer could require this but it was the option of the employee to use sick time. Is that true? Can anyone shed any light on this for me?

Did you qualify to take the leave under the FMLA?

They said I can complete the paperwork if I choose to, but it is not necessary. Whatever that means?

This HR compliance stuff is not my thing! Thanks for anything anyone can help with.

actually, they are trying to not penalize you by making sure you recieve full pay while you are out. You should have a frank conversation with your HR person who is responsible for benefits about this, including why FMLA is or is not appropriate for this case. Your bank may have a policy that does not allow employees to take leave without pay if they have vacation or sick leave. 2 weeks may be too short a time to qualify for FMLA...but i'm no FMLA expert.

Then if you're not taking the leave under the FMLA, I suppose they can do whatever they say their policy is.

You say you're going on Monday, so it's probably too late to be eligible now. (Qualifying for leave is very specific with respect to circumstances and timeframes).

Don't hold this as gospel - I just pulled out my Bank's policy. I'm guessing your bank has a written FMLA policy that should address these things.

I understand that they can require it...and they do. But, I am confused about the FMLA part and they aren't clear on it either when I ask questions which is why I am here asking instead. Another employee went out last year and she said she took it unpaid, but I think she had FMLA.

I also am concerned now that they told me that "you can fill it out if you want to" (FMLA paperwork).... either I do, or I don't. I am trying to keep my cool with this because they are also demanding I have the paperwork back to them by tomorrow (surgery on Monday) along with my doctor excuse. They just gave me the paperwork yesterday! And, my doctor said because they are doing this surgery at the last minute they may not be able to have the paperwork back to me before I go in for surgery.

Oh yes, and it does. They have been on notice since the day after memorial day that I would be going out on surgery as soon as I could see the doctor. They had 30 days notice.

Also, I just looked at my information packet and memo and the memo states I am covered for short term disability and FMLA. But the last sentence says once the paperwork is submitted to HR, they will make the determination if I am eligible.

Are you FMLA eligible? Does your employer have 50 or more ee's within a 75 mile radius? If that answer is yes --- then - have you been employed at least 12 months and worked at least 1250 hours during that period of time? If that answer is yes - then you should be eligible for FMLA. Please note that FMLA is not "paid" leave. It is simply 12 weeks of job protection. Employers normally run FMLA and STD concurrently. Our STD plan starts paying on the 8th day - meaning the first week the employee must use, sick, personal, vacation pay to cover that first week. If one of our employees takes a personal leave for family illness then they must use all but one week of their paid time off. Our policy is employees must use paid time off before taking no pay days. There are many good reasons for having a policy like that. You could have an employee off for say 3 weeks unpaid, and then take additional paid time off later in the year. That is a lot of time off that someone has to fill in.

Yes, I qualify. And, yes I see why they would do that based on your last two sentences. However, I have a vacation already scheduled at the end of the year and I am moving. This surgery was not something that was planned on. So...my supervisor said HR will either give me unpaid time off during my disability or he will approve me as unpaid time off later on in the year. Either way I will take unpaid time.

I really have serious issues with them forcing you to use vacation time. I can understand sick or personal, but vacation?! That is just ridiculous.

I could swear that I saw something that said if you are eligible for FMLA you can then opt to take vacation time but they couldn't force you. Am I not correct?

So...my supervisor said HR will either give me unpaid time off during my disability or he will approve me as unpaid time off later on in the year. Either way I will take unpaid time.

I am now confused I though that you wanted to take unpaid durring you disability?

I believe this is policy your company dictates, not FMLA. FMLA, as mentioned above, is a job protection law, not a pay and wage law.

Yes, I do want to take it unpaid. However, my supervisor said either HR will let me take it unpaid during disability or he will approve it unpaid later in the year.

I had this exact situation years ago when I needed to take time off due to an unforeseen/unplanned medical situation. I was required by my company to take all of my paid time off before FMLA kicked in. I, too, had plane tickets purchased already for a vacation later in the year. My supervisor stated (verbally) that she would approve my vacation as unpaid time off later in the year. I wish I had gotten her to put it in writing.

When the time came, my vacation was not approved as unpaid time and I was basically told to show up or be let go because it wasn't fair to my co-workers that I had so much time off and they had to cover for me. I was not able to go on my vacation, I lost the money for the plane tickets, and my supervisor and HR both told me "I guess you should have bought trip insurance." I was very upset, but I do understand that a company has to watch out for its own interests and balance the requests of one employee vs. the needs of the whole company and its customers.

Hopefully, you can take this medical leave now as paid time off and FMLA (which guarantees you will have a job to come back to) and then take your vacation time later, approved and taken as unpaid time off, and the net result will be the same to you. If I were you, I would request that your supervisor/manager put in writing that he/she will approve it as unpaid time off later in the year. Good luck!

of course, you could also be thankful that the company has told you well in advance their position, and I'd be leary of a supervisor stating something contrary to published company policy concering time off without pay. If you want to know if this is legitamate or not, I'd send an email to the supervisor and copy HR clarifying your understanding that you will be allowed to take vacation unpaid later in the year.

Sadly, it appears that your hopes of vacation this year will not come to fruition. I've been in your situation once before for a surgery I had (planned well in advance but it resulted in my being out longer than expected and I had to use vacation as well). Which is why I always take 1 week of vacation within the 1st quarter!

It sounds like you are intitled to take unpaid time off for this under FMLA to me.

I have seen many a company who does not understand the process and doesn't follow the law. It almost seems by telling you to you don't have to do the paperwork, they are trying to avoid the law...becasue if you don't do the paperwork, they don't have to follow the rules set forth in the law.
Visit this website for details on your (and their) rights under FMLA
http://www.dol.gov/whd/regs/compliance/whdfs28.htm

I also think becasue they gave you misinformation before the surgery, you should be able to turn in the paperwork after the fact and still be covered under FMLA!

FMLA and STD are two separate things. FMLA is mandated by law and STD pay is a benefit that your employer provides. If you qualify for FMLA leave based on the criteria somebody outlined above, the employer has no choice but allow you to take that time off. Documentation for FMLA does not necessarily need to presented before the leave, it can be approved retroactively - this is not a matter of company policy, but the law. But FMLA only provides for unpaid leave and job protection during the leave time.

Under federal FMLA, employees can choose to use PTO (vacation, sick, etc. time) or employers can require that employees use PTO time during the leave. However, in addition to the federal FMLA that applies to everyone, each state has it's own leave laws and some of them are more restrictive than FMLA. For example, in WI, employers cannot require that PTO time be used during FMLA. That being said, some employers may still require to use your PTO in order to qualify for their benefit (not FMLA) - Short Term Disability payments.

Bottom line, you need to look at your state law (I am sure you can find an understandable version of this online) and also talk to your HR people and get a clear understanding of why the requirements are the way they are - even if it is company policy, it must comply with the applicable laws.

Hope your recovery is going well!