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Vacation or medical leave?

Posted by Elaine Varelas  July 1, 2009 10:44 AM

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Q. I am currently on medical leave from work. I was recently approved for short-term disability coverage. Up until this point, my workplace was compensating me by exhausting my vacation and sick time. I was under the assumption that once short-term disability was approved, my workplace would then stop compensating me through my accrued vacation time. Yet when I informed my workplace that I was approved for short-term disability, they said that they would still have to exhaust my vacation time until my return in addition to the short-term disability checks I am now receiving. Is this legal? I am now receiving 2 forms of income, short-term disability and my vacation time pay.

A. I hope that your health is improving – whatever the circumstance, which of course does matter to be able to answer this question. Often benefits questions are a matter of law, policy, and contractual issues, which makes them a challenge to untangle.

David Conforto, of Conforto Law Group, P.C. a Boston-based boutique firm concentrating in all aspects of employment law and dedicated to the representation of employees, confirms that the answer to this question will depend on the circumstances surrounding your medical leave.

“In general, employers have wide discretion in establishing vacation time policies. Some employers require vacation time to be used in the year that it is earned, whereas others allow such time to be banked from year-to-year. In your situation, your employer is essentially limiting the amount of time that you’ll be out of work by requiring you to use your accrued vacation during your medical leave. This can be a valid policy where it is applied consistently and where your medical leave is not pregnancy-related.”

If your leave is pregnancy related, Conforto suggests you may be protected by the Massachusetts Fair Employment Practices Act and Title VII of the Civil Rights Act, in addition to the Massachusetts Maternity Leave Act (“MMLA”). Attorney Conforto goes on to explain “Under the MMLA, an employer can not require an employee to use up her accrued vacation time during her MMLA leave, even if the employer has imposed a similar requirement with respect to other types of leave. As such, you may be able to hold onto your accrued vacation time, at least for the first 8 weeks of your short-term disability leave.

In contrast, you’re not likely to find any relief under the Family and Medical Leave Act (“FMLA”) Section 825 of the FMLA’s regulations, which allows your employer to require you to utilize your accrued paid leave.

Understanding benefits, even before you get to the paperwork, can be very complicated. I encourage you to meet with the human resources benefits specialist for a full explanation of how you are covered, and how the policy works for both you and the employer. If they are not able to explain this clearly enough, they may be willing to put you in touch with the benefits broker who manages the policies so that you can feel confident that you are being treated fairly.

This blog is not written or edited by or the Boston Globe.
The author is solely responsible for the content.

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13 comments so far...
  1. It should be mentioned that although an employer cannot require you to use your accrued vacation during MMLA leave, it also is not required to pay you during MMLA leave. So if you want to get paid, you may have to use your vacation time. Employers who do pay employees during maternity leave are not required by Massachusetts law to do so - that is a common misconception among workers.

    Posted by Jen July 3, 09 11:24 AM
  1. Generally, HR is the weak link of any company. Talk slowly (HR people are none too bright), be persistant, and continue to assert your point. They will eventually get tired of hearing from you and give you your vacation time back.

    Good luck.

    Posted by Swarley July 3, 09 02:03 PM
  1. So Swarley, when HR people give into the demands of a persistant person, it's not because they (the HR people) are not too bright. It is rather because some will do whatever they can to get rid of an obnoxious employee. . . and trust me, "getting rid of an employee" does not always mean giving in; in fact most of the times it means "termination." You can then go "assert your point" at the unemployment line.

    Posted by Luciennepierre July 3, 09 10:43 PM
  1. I agree with commenter number two. Human Resource personnel, especially in the public sector, are by and large not detail oriented and often have attitudes. You are better off talking to an in-house attorney if you can, or outside counsel if this is impossible. Good luck!

    Posted by Bradley July 4, 09 11:09 PM
  1. HR is one of the strongest links in the company, as they must know employment laws and consistently and fairly decipher and apply company policies and procedures to all employees.
    I can guarantee that speaking slowly an continuing to assert your point you will NOT get your vacation time back, as your vacation time is most likely being exhausted per your company policy.
    The comment above souds as it came from someone " none to bright" as employees cannot make uo their own labor laws to meet thier needs.

    Posted by Sarah Harrington July 5, 09 06:50 AM
  1. No matter what the "policy" is, it's still weak and cowardly.

    I can't stand people in corporate positions that hide behind "policy" so they can act weasel like and cowardly.

    There is not more disencouraging words than "that's our policy". So many people hide their own puny existences and decisions behind some vague "policy".

    It allows them to be be scumbags without having to feel bad about it. Just because something is "policy" doesn't necessarily make it right. Keep in mind, most people that make this "policy" are totally incompetent rejects with no personal skills.

    Posted by Mikey "Insane" Monkeypants July 5, 09 09:12 PM
  1. Perhaps tangential to the article, but I think this issue deserves some attention:

    Why was the MMLA named with the word "maternity" when it was enacted? Please correct me if I'm wrong (I am not a lawyer), but there don't seem to be any explicit provisions in Mass state law about fathers getting identical treatment. It seems like the MMLA inherently sexist in name, if not content. I think it should really be renamed the MPLA: Massachusetts Parental Leave Act. It seems that Federal laws do not discriminate based on sex, yet this mass state law does. That sounds disingenuous to me, even if dads (birth or adopting parent) are given identical treatment under federal law (and I'm not even certain this is the case).

    Has this issue ever been taken to court?

    Posted by parentalequalityadvocate July 6, 09 12:15 AM
  1. Swarley,

    HR people are plenty bright. Being persistent only creates/places distance between you and the HR people who are trying to help you through the leave of absence maze. As a benefits professional with over 15 years of leave of absence experience consistency is the best method of handling leaves of absence. If policy states the usage of your vacation time at the beginning of your unpaid leave of absence you will not have much of a chance to get your vacation time back.

    Posted by Mark July 6, 09 07:01 AM
  1. If your company is anything like ours, the STD and LTD plans are both now actually outsourced via insurance coverage and not self funded. At our company you must expend all paid time off (vacation and sick time) prior to being OK'ed for STD, and to "qualify" for LTD you must have used all paid time off plus all available STD benefits. Additionally the checks are directly from the insurance company, not from the employer. We have a fairly clear written policy regarding how STD/LTD work and I'm surprised that you have a "benefit" that does not have an associated written policy on record. Isn't having a "written policy on record" a requirement for all emplyee benefits?

    Posted by PB48 July 6, 09 05:37 PM
  1. It is quite offensive to assume that all HR professionals are not 'bright' and that HR is the 'weak link' of a company. Your experiences in your company may not have been positive when dealing with your HR department, but to say that all HR professionals are not bright is like saying all lawyers are slimey . Gross generalizations like that never get anyone anywhere. Good HR professionals save companies thousands of dollars a year by ensuring compliance that prevents law suits and regulating benefit plans so the company isn't paying more than they have to. Your statement was very, very unfair.

    Posted by KAM737 July 6, 09 07:06 PM
  1. parentalequalityadvocate: the name is maternity in the law, and it was enacted with maternity in mind. But Federal laws really require that it applied equally. So, basically, paternity leave has to be offered on the same terms as maternity leave. MMLA only requires unpaid leave, which generally makes it mostly (though not completely) like FMLA at the federal level -- so if a company offers unpaid leave pursuant to MMLA/FMLA, fathers are covered.

    But if a company offers *paid* maternity leave, you could absolutely sue for the right to paid parental/paternity leave. I think it has not been litigated in Massachusetts, but at one point the state attorney general came out with an official position that MMLA had to be applied in a gender-neutral way (if I remember correctly; or maybe it was the EEOC that said so. At any rate, somebody did!) So it's the sort of thing I think worth talking to a lawyer about if you find yourself in that position.

    Posted by jlen July 7, 09 11:10 AM
  1. There's a key point here: The employee is being required to exhaust PTO concurrently with receiving STD benefits. If the employee needs to exhaust PTO first, there ordinarily wouldn't be STD benefits paid during that time. Otherwise, if STD benefits are being paid, there should be no need for PTO. That's sensible, whereas concurrent benefits are questionable.

    Ms. Varelas makes the excellent point of the importance in communicating with the HR department. The employee needs to ask for a written copy of the policy in effect as of the date of disability, and that policy should clearly lay out the cutover from PTO to STD.

    It's also possible that the STD benefits are being paid prematurely, and everyone involved should want to straighten this out quickly if it's happening.

    Posted by dotpat July 7, 09 11:58 AM
  1. It seems to me that the letter writer was more concerned about any ramifications from essentially receiving two concurrent types of pay; one from his employer while he is using his vacation time and another from the short term disability. I would be concerned too as I would wonder if I could be cited for fraud at a later time or have to give some of the disability money back with possible penalties?

    Posted by Allycat13 July 7, 09 12:20 PM

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