Requiring Employees to Use Leave Benefits

Recently, several districts have asked if an employee has the option to forgo the use of leave and be docked pay instead.

Employees may find it more desirable to be docked for a day to preserve their leave balance for other reasons such as maternity leave or other upcoming issues. In most instances, this is not permissible and contradicts an employer’s goal of managing or minimizing the amount of time an employee is away from work.

Rules for Use of Leave

School boards, not employees, have the authority to adopt local policies to govern the use of personal leave and can provide additional leave if desired. Rules and limitations for taking leave are defined by local policy and regulations or administrative procedures. Allowing an employee to save paid leave results in more time away from work and can create hardships in meeting organization and department goals.

To minimize absences, most organizations require an employee to use available paid leave concurrently with other leave (e.g., family and medical leave (FML) and temporary disability leave (TDL)). These rules should be applied consistently and without discrimination.

Frequently, an employee requests not to use FML if they have paid leave to cover the absence. This is also not permissible as detailed in a 2019 Department of Labor opinion letter. The letter clarifies that neither the employer nor employee may delay or decline designation of FMLA protection for a qualifying condition.

Workers’ Compensation Exception

The only time an employee has a choice to not use leave is when the absence is for a workers’ compensation injury or illness. Workers’ compensation rules provide the employee with the right to elect or not elect to use leave. When an employer requires the use of paid leave, the workers’ compensation carrier cannot use the payments when calculating temporary income benefits (TIBs). As a result, an employee is entitled to the TIBs payment and paid leave which in some cases may be as much as 170 percent of the preinjury wage.

Forms to document an employee’s choice to elect leave benefits with workers’ compensation are available in the HR Library (member login required). Models are available in English and Spanish for non-offsetting and offsetting districts. The form should be completed as soon as an absence starts and shared with the workers’ compensation carrier so TIBs can be correctly calculated.

Communication is the Key

Employers should ensure that leave benefits and related rules and procedures for requesting and using leave are clearly communicated to employees. Information should be addressed in new employee orientation, annual updates at staff meetings, and the employee handbook. It also is beneficial to annually distribute a brochure summarizing leave benefits. A template for designing a local trifold is available in the HR Library.