Question: When an employee is taking Family and Medical Leave Act (FMLA) leave and getting state disability (or private supplemental disability), can the employer require that the employee use any accrued vacation time first? What if the employee is not being paid any disability during that time, does that change?

Answer: In general, an employer may require an employee to use accrued paid leave to cover Family and Medical Leave Act (FMLA) leave taken, but they should have a policy or practice in place requiring this of all employees; sick time may not be required to be exhausted.

As it pertains to state disability, where applicable, employers may require that employees use up to two weeks of vacation prior to applying for any existing paid family leave but not prior to applying for general state disability insurance. Whether this is an option for private disability leave would depend on the terms of the plan. We recommend reviewing plan documents, state leave requirements/waiting periods, or speaking with your broker or carrier to determine what may be permissible.