Could a Louisiana state employee use sick leave while taking federal family or medical leave?

Plain-English summary

Northwestern State University's counsel asked whether state employees could use accrued sick leave during leave under the federal Family Medical Leave Act, including to care for an ill family member. The AG said substitution depended on the employer's ordinary sick leave policy. It was advised that the state civil service rule then did not permit sick leave to care for an ill family member, so that use was unavailable under that policy.

The opinion also said the federal leave statute did not distinguish classified from unclassified positions for its application.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was paid sick leave automatically available during federal family leave?
No. The AG said the employer's ordinary leave policy controlled whether sick leave could be substituted.

Could a state employee use sick leave to care for an ill family member under the policy reviewed?
The AG said no, based on the state civil service rule as described to it.

Did classified status change federal leave coverage in this opinion?
The AG said the statute made no classified versus unclassified distinction.

Background and statutory framework

The opinion quoted the then applicable federal leave regulation on substitution of paid sick leave and applied the state civil service rule as described by its representatives. It treated eligibility for the federal leave separately from paid sick leave substitution.

Citations and references

• Section 825.207 of the federal leave regulations: substitution of paid leave, as quoted in the opinion.
• State Civil Service Section 11.13: sick leave policy described to the AG.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/00-0190

Original opinion text

June 1, 2000
OPINION NUMBER 00-190

22-B
Education-Colleges and other Institutions of
Higher Learning
54
Insurance
Ms. Linda Law Clark
Attorney at Law
An employee may use accrued sick leave when absent from work
pursuant to an FMLA situation only if the employer’s leave policy
1961 Government Street allows sick leave to be used for that purpose. FMLA does not Baton Rouge, LA 70806 distinguish classified or unclassified positions in its application.

Dear Ms. Clark:

You have requested an opinion of the Attorney General in your capacity as legal counsel to Northwestern State University (University) regarding the Family Medical Leave Act of 1993, 29 U. S. C. A. Sec. 2601 et seq. (FMLA). You first ask whether a University (state) employee can use accrued sick leave when absent from work in an FMLA situation.

In answer to your first question, we refer you to Section 825.207 of the final U. S. Department of Labor Regulations promulgated pursuant to the FMLA. It provides, in pertinent part, the following:

§ 825.207 Is FMLA Leave Paid or Unpaid?

(a) Generally, FMLA leave is unpaid. However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute paid leave for FMLA leave….

                                *      *       *

(c) Substitution of paid…medical/sick leave may be made for any (otherwise) unpaid FMLA leave needed to care for a family member or the employee’s own serious health condition. Substitution of paid sick/medical leave may be elected to the extent the circumstances meet the employer’s usual requirements for the use of sick/medical leave. An employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave “in any situation” where the employer’s uniform policy would not normally allow

Page 2

OPINION NUMBER 00-190
Ms. Linda Law Clark
Attorney at Law
Page: -2-

such paid leave. An employee, therefore, has a right to substitute paid medical/sick leave to care for a seriously ill family member only if the employer’s leave plan allows paid leave to be used for that purpose. Similarly, an employee does not have a right to substitute paid medical/sick leave for a serious health condition which is not covered by the employer’s leave plan.

As can be gleaned from the above, a state employee may use accrued sick leave in an FMLA situation only if the employer’s sick leave plan allows paid leave to be used for that purpose.

You next ask whether a state employee can take accrued sick leave in an FMLA situation when the absence is for the purpose of taking care of an ill family member. As previously noted above, a state employee may take accrued sick leave in an FMLA situation only if the employer’s leave plan allows sick leave to be used for that purpose. We have been advised by representatives of the State’s Civil Service that Section 11.13 of its rules relating to the use of sick leave does not allow sick leave to be used for the purpose of taking care of an ill family member. Therefore, and in answer to your second question, a state employee may not use sick leave in an FMLA situation to care for an ill family member.

You finally ask whether the FMLA uniformly applies to both classified and unclassified positions. A review of the provisions of the FMLA reveals no distinction between classified and unclassified employees for purposes of its application.

Trusting this adequately responds to your inquiry, I am

Very truly yours,

RICHARD P. IEUYOUB
Attorney General

By:
ROBERT E. HARROUN, III
Assistant Attorney General

RPI/REH,3/sfj

Page 3

SYLLABUS
OPINION NUMBER 00-190

22-B Education-Colleges and other Institutions of Higher Learning 54 Insurance

An employee may use accrued sick leave when absent from work pursuant to an FMLA situation only if the employer’s leave policy allows sick leave to be used for that purpose. FMLA does not distinguish classified or unclassified positions in its application.

Ms. Linda Law Clark
Attorney at Law
1961 Government Street
Baton Rouge, LA 70806

DATE RECEIVED:

DATE RELEASED: June 1, 2000

Robert E. Harroun, III
Assistant Attorney General