Question: If an employee is on Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) leave for their own serious health condition and receiving State Disability Insurance (SDI) or some other form of paid disability benefits, can the employer require them to use their paid time off, sick leave, or vacation to make up the rest of their wages?
Answer: No, the employer cannot require an employee to integrate accrued paid leaves with paid disability benefits if the employee does not want to use such leave. When an employee is on FMLA/CFRA leave and is receiving paid disability leave through a short- or long-term disability leave plan, such as SDI, the employee is not considered to be on “unpaid leave.” (2 C.C.R. section 11092(b)(2).) As a result, the employer cannot unilaterally require the employee to use paid time off, sick leave, or accrued vacation. The employee and employer may mutually agree to integrate accrued paid leaves with the paid disability benefits, but if the employee declines to do so, the employer cannot require it.
Please note that the answer differs when an employee is on FMLA/CFRA leave but not receiving any paid disability benefits. In that case, the employee may elect to use or an employer may require an employee to use any accrued vacation time or other paid accrued time off, or sick leave when the employee is otherwise eligible to use it.
Question: When determining whether an employee is full-time for ACA purposes, what counts as an hour of service?
Answer: Under the ACA, an “hour of service” is: (1) each hour employee is paid or entitled to payment for performance of duties; and (2) each hour an employee is paid or entitled to pay during time for which no duties are performed (i.e. vacation, holiday, illness, incapacity, military duty, leave, jury duty, layoff). Please note that the ACA’s definition of “hour of service” differs from the Fair Labor Standards Act’s definition of “hour worked” for wage and hour purposes.