Nurse seeking FMLA leave may find limited protections under the law

DEAR CARRIE: I am a nurse and work three days a week for a private medical group. I suffer from a neurological disorder that has no cure and is managed with medication and rest. I gave my bosses a letter from my neurologist requesting that I limit my shift to eight hours. But the office recently announced extended hours that will require me to work nine hours a day at least once a week. I have the option of filing for time off under the Family and Medical Leave Act because we are part of a large medical corporation. I would be able to break up the weeks allotted under FMLA into intermittent leaves of as little as an hour. I have two questions regarding that. If I opt for an FMLA leave, do I have to use up all my paid time off first, including vacation, personal and sick time? My company is insisting that I do. Also, if the office decides to terminate me because I cannot work the longer hours, would I be able to collect unemployment benefits? -- Leave RX

DEAR LEAVE: As to your first question, yes, your employer can require you to use up your paid time off first.

The FMLA grants eligible employees at companies with at least 50 employees up to 12 weeks of unpaid leave a year for such things as family and personal medical emergencies. Employers can require their workers to begin that leave with their paid time off.

"More often than not, employees would rather retain accrued leave to have it as they need it," said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department, the agency that enforces FMLA. "Most often, employers require accrued paid time to be used for family leave because they don't want the person coming back and going out on vacation."

You're not alone in wondering about the legality of your employer's paid-time-off-first policy.

"This issue of the required use of an employee's paid leave is one of the most common questions we get with regard to FMLA leave," Miljoner said.

As to your second question, if you are fired because you cannot work the longer schedule, you could qualify for benefits as long as you are able to work.

I am glad you asked that question because it brings up a lesser-known aspect of FMLA. Although the law has built-in safety nets like job and health-benefit protections, you could still be laid off while on leave. For example if the company has a general layoff that affects your job, then your employer could legally let you go while you're still on FMLA leave.

"While FMLA has its entitlements for the employee, and while it does have a job-protection aspect to it, the FMLA does not prevent or preclude any action that would have transpired in the normal course of business," Miljoner said. "If there was going to be a layoff, and this employee was going to be laid off, the FMLA cannot protect the employee."

DEAR CARRIE: I work for a nonprofit organization that owes me nearly five months' pay. I am seeking a new job, but I'm wondering, if I do quit or am laid off, am I entitled to collect my back pay? If so, how do I do this? I can't afford to go without the money and have been making do for the sake of the organization. But I've reached my limit.

-- No Pay Day

DEAR NO PAY: If you leave the organization for whatever reason, you are still entitled to the money you have already earned.The state and federal labor departments can help you recoup your wages.

Go to bit.ly/LIleave for more on employees' rights under the FMLA.

CORRECTION: An earlier version of this column misstated the options available to "exempt" employees if they leave an employer while owed back wages.