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LEAVE ACT DOESN'T PROTECT SENIORITY

Q I work for a school district, and I pay into the teachers' retirement system. I became ill and was out for 70 days under the Family and Medical Leave Act. Before I returned to work, I received a letter stating that the retirement system administrators were changing my date of hire because I didn't pay into the retirement system for the time I was out. Can they do that?

A Your question brings up a little-known wrinkle in the 15-year-old FMLA, which is one of the most complex federal labor laws.

The FMLA grants qualified employees up to 12 weeks of unpaid leave to tend to family or personal medical emergencies. And it preserves employees' job status and health benefits while they are on leave.

But the law doesn't mandate that employees be allowed to accrue any extra benefits while they are on leave. And that goes to the heart of your question.

Irv Miljoner, who heads the Long Island, N.Y., office of the U.S. Labor Department, sums it up:

"You can't be adversely affected for having taken FMLA leave," he said. "Your benefits cannot be adversely affected."

"But," he said, "the one thing that can be affected is your tenure, your length of service. ... You earn seniority by virtue (of being on the job)."

"The employer is allowed to adjust your service time," Miljoner said.

Another wrinkle in the FMLA is that companies can require their employees to use up vacation, sick or other paid leave concurrently.

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