Help Wanted: accumulated sick pay and FMLA

DEAR CARRIE: I have been employed at a local university for almost 11 years and have accumulated 120 sick days, or 24 weeks. I need surgery, and the human resources department advised me that I could take time off under the Family and Medical Leave Act, which gives me up to 12 weeks off for my medical emergency. The company will apply some of my sick days to the leave to make it paid. But I will have many days left over. If I don't return to work after my leave is up and my company terminates me, would it be legal for my employer to refuse to pay me for any leftover sick days? If this is correct, why would anyone want to save more than 60 sick days? -- Sick Daze

DEAR SICK DAZE: The answer depends on your employer's paid-time-off policy. If that policy says you forfeit the time when you leave, then you lose those days.

"If the employer terminates the employee at the end of the FMLA leave, it is only required to pay out the remaining sick days if its own policy requires it to do so," said Ellen Storch, of counsel at Kaufman Dolowich Voluck & Gonzo in Woodbury.

That's why it pays to read the fine print of your employer's paid-time-off policy as soon as you sign on with the company and if its rules change.

Regarding a possible termination, your employer could legally fire you if you don't return from the FLMA leave -- but with two possible exceptions, Storch said. First, your employer would have to extend your leave if its policy permits employees who have accumulated more than 12 weeks of sick time to extend their FMLA leave by that number of leftover days, she said. Secondly, the employer may have to extend the leave if the employee has a disability and can establish that an extended leave would permit the person to return eventually to work and perform the "essential functions" of the job, she said.

But she said, "The employer would not be required to grant the extension if doing so would impose an undue burden on it."

DEAR CARRIE: Earlier this year I was downsized from a small company, where I worked for more than 10 years. We were open from 8 a.m. until 6 p.m., Monday through Friday for most of the year. But from Memorial Day until Labor Day, the office closed at 5 p.m. on Fridays. I always felt it was unfair that people with later quitting times benefitted unfairly from the abbreviated schedule. They were the people who were scheduled to work until 5:30 p.m. or 6 p.m. and wound up getting paid for 40 hours just as those of us who actually worked that many hours even when the company closed earlier on Friday. Some of us, for example, worked from 8 a.m. to 4 p.m. We were not union employees, and no one ever made a complaint about this policy. I was just wondering: Can an employer do this legally? -- Cheated?

DEAR CHEATED: This is an example of a company paying employees, at least some of them, more than the law allows, and that is always permissible except if the treatment discriminates against other people on the basis of such things as age or race.

It sounds as if you and your colleagues were hourly employees. Labor laws require that you be paid for all the hours you work. If a company wants to pay some employees for hours they didn't work, labor laws have no quibble with that.

So while the policy may have been unfair, it seems perfectly legal.

For more on paid-time off and state labor laws go to http://bit.ly/vueHQu; For more on an FMLA leave go to http://1.usa.gov/sz5Ypd.