What happens if I have used three sick days but I am still sick?

By Douglas Lipsky

Whether or not you’re gonna get credit for an FMLA day or whether you have to use an FMLA day, there’s a couple things you have to remember. One of which is FMLA is unpaid leave. So you’re never going to get paid because you took an FMLA day. If you’re getting paid it’s because your employer is using your sick time or your PTO time. What the FMLA allows though for employers to do is they allow employers to run that time concurrently. So what that means is your employer can choose to charge you for PTO time and pay you for FMLA days until your PTO runs out. So you could end up in a scenario, for example ,if you had five paid sick days and you were gonna be out of work for two weeks, you could end up getting paid for five, those first five sick days that you’re out, where your employer uses up the sick time that you had and then the balance of the time that you’re out would be unpaid. It is possible for you to be getting paid while you’re on FMLA but you’re not getting paid because of FMLA. What you’re getting paid is some other form of paid leave whether it’s a PTO day or sick day. Perhaps you qualify for a short term disability or a long term disability that’s going to pay while you’re actually out on an FMLA leave but there’s nothing in the FMLA itself that would require your employer to pay you. It is, it is by statute an unpaid leave.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.