How Employers Can Avoid FMLA Pitfalls

December 2, 2019

The FMLA has been law since 1993 but employers can still find the rules confusing.

The Family and Medical Leave Act’s (FMLA) paid leave and leave stacking rules aren’t new, but they can sometimes trip employers up. FMLA rules generally apply to employers who have 50 or more employees within a 75-mile radius, and only to employees who have been employed for 12 months and worked at least 1250 hours during the past year.

The FMLA allows employees to take 12 weeks of leave in a 12-month period for certain medical reasons. Employees also can use FMLA leave to take care of critically ill family members or for the birth or adoption of a child. Leave can be taken all at once, intermittently or on a reduced schedule. Special rules apply to service members with a serious injury or illness, or their family members caring for them.

FMLA leave generally is unpaid, although employers can require employees to run FMLA at the same time as other leaves. Running the leaves concurrently prevents “leave stacking” where employees use all of their unpaid and paid leaves to be away from the workforce for more than 12 weeks.

Paid Leave Exceptions

Employers can require employees to use earned vacation, sick time or paid time off (PTO) time concurrently with FMLA leave. However, employers are not obligated to allow an employee to substitute paid sick leave for unpaid FMLA leave in order to care for a child with a serious health condition when the employer’s normal sick leave rules only allow employees to take off work for their own illness.

There is an exception regarding paid leave. The Department of Labor (DOL) states that, “Leave taken under a disability leave plan or as a workers’ compensation absence that also qualifies as FMLA leave due to the employee’s own a serious health condition may be designated by the employer as FMLA leave and counted against the employee’s FMLA leave entitlement. Because leave under a disability benefit plan or workers’ compensation program is not unpaid, the provision for substitution of accrued paid leave does not apply.”

However, the DOL adds that if state law permits it, employees can use accrued paid leave to supplement the paid plan benefits, such as in a case where a plan only provides replacement income for two-thirds of an employee’s salary.

Year-End Considerations

If you track FMLA leave according to a calendar year, you might end up with a situation where an employee who is giving birth or adopting late in the year can take 12 weeks at the end of the year through Dec. 31 and then on or after Jan. 1 take off another 12 weeks for a total of 24 weeks in less than 12 months. Called leave stacking, it is allowed by federal regulations. Employers are not obligated to help employees maximize their leave duration, but they must provide employees with accurate and truthful information about FMLA.

If you want to avoid leave stacking, you can use a rolling FMLA year. This allows employers to review the previous 12 months and determine how much FMLA leave the employee has used and how much remains,

Employers are permitted by federal law to change their FMLA year to a rolling FMLA year if they give all employees at least 60 days’ notice of the change. Any employee on FMLA at that time must be transitioned in a way that provides the employee with the full benefit of their leave.

State laws vary. For example, employers in Wisconsin must use the calendar year when determining FMLA leave.

Please email us at if you have any questions about FMLA specific to your state or region.