Help with FMLA and NY State Labor Laws
jsugrin
member
Hi, I'm a NorCal girl but my step-mom is from NYC and is currently dealing with a family crisis with her mother whom is very ill. As a former HR Director I know CA laws and how FMLA is handled back and forth here but I need some help for NY.
Her sister has 80 days of vacation saved up. She works for a private school as an admin assistant. She's being told that if she takes FMLA that they will apply ALL of her vacay days to the FMLA time. Also that although she had 80 days of vacation time that after the 12 weeks of FMLA they would post her job out (and not re-hire her it sounds like).
So my ?'s,
1.Are there NY state laws that regulate how much vacation/PTO time a business can require an employee to take concurrently with FMLA. ( In CA they are only able to require you take a maximum of 2 weeks of vac/pto).
2. If you are terminated or quit a job and have vacation/pto on the books is the employer required to pay you out for your vacation time.
TIA
Re: Help with FMLA and NY State Labor Laws
New York does not have any laws other than the federally mandated FMLA laws.
For question 1: The FMLA permits employers to require employees to use their accrued paid vacation leave and their sick leave for some or all of their FMLA leave. According to the FMLA regulations, an employer can require paid sick leave to run concurrent with FMLA leave. However, under no circumstances can an employer penalize an employee for taking FMLA qualifying leave as sick leave.
For question 2: From this site: https://www.labor.ny.gov/workerprotection/laborstandards/faq.shtm#11
Q: When an employee resigns -- or is discharged -- from a job, is the employer required to pay the employee for any accrued, unused vacation time?
A: Whether an employer is obligated to pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held [in Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980)] that an agreement to furnish benefits or wage supplements, such as vacation, can specify that employees forfeit accrued benefits under certain conditions. To be valid, the employer must have notified employees, in writing, of the conditions that nullify the benefit.
If an employee has earned vacation time -- and there is no written forfeit policy, the employer must pay the employee for the accrued vacation.
Hope this helps too: https://blog.laborlawtalk.com/2008/02/29/paid-time-off-and-fmla-in-new-york/
I do disability and FMLA for a living at metlife insurance company what I can tell you is that you are required to use your pto to run concurrently with your fmla leave. I know the policy at metlife is that they will use all your pto and then the rest is unpaid once your pto has been exhausted. federal FMLA is 12 weeks and once it is exhausted you do not get anymore for a year. that being said after the FMLA has exhausted they have the right to terminate employment.
as for question number 2 every employer is different and you would have to review the specific policies
That sounds about right, I looked into FMLA for my maternity leave. They guarantee your job and your health insurance for 12 weeks from the first day of leave, after that you have to pay Cobra to keep your health insurance. You must use all your vacation/sick time.
Is she in union? Because I am (I work for the NYC), and because of the union contract, they have to hold a job (not necessarily your job) for up to 3 years. But that is specific to my union- other unions have other agreements/benefits.