I wish this was a simple yes or no answer, but it’s not. The answer really depends on your employer’s policy and the fact that they cannot discriminate. Let me explain.
Most employers have implemented policies that state that any unpaid leave and leave granted outside of payroll (short term disability, workers comp, etc.), does not allow for the accrual of PTO time. This includes unpaid FMLA leave. So, if you are on unpaid FMLA leave and your employer does not have a policy that states you are to accrue PTO days on unpaid leave, and other employees on unpaid leave are not accruing PTO days, you are not entitled to accrue days.
However, if you have chosen, or required by your employer, to use your PTO days while out on FMLA leave, you may be entitled to accrue days. Your employer can not discriminate against you for choosing how to use your PTO days. You are entitled to choose how you use your PTO days, whether it is for medical leave or to sit on a beach. If your employer allows accrual of PTO days while on a vacation, they should allow it for medical leave as well.
If you are currently using your PTO days while out on FMLA leave and not accruing days, or you think that you should be accruing days while on unpaid leave, my advice to you is to first check your employer’s policies. If you find that you should be accruing days while on PTO, or that others are accruing PTO on unpaid leave, then speak with your HR manager or his/her boss. Your employer does not want to hear the word discrimination, especially if you are not the only one. Give your employer the opportunity to fix the situation before taking further action. If that does not work, you can file a complaint with the Equal Employment Opportunity Commission and speak with an employment attorney.
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