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FMLA is Not Vacation
Editor's Note
FMLA is Not Vacation
Whatever the reason an employee is taking FMLA, it's not a vacation. This may be most true after the joyful event of having a baby. (It's truly amazing we survive our children's first year of life.)
Paid leave is an issue for employers because they don't like to have liability for paid leave building up on their books. And FMLA is generally unpaid. It makes sense to allow employees to use their paid leave during FMLA leave. That's different from requiring employees to use paid leave during any FMLA leave, which has become a common practice.
Some states, like California, have prohibited employers from forcing employees to use paid leave during family medical leave. While employees can elect to use it; they don't have to. This is the way.
Sometimes there are state benefits available. In some states, employers can buy insurance that covers a portion of the employee's wages while they are on family medical leave. The important thing is to give employees the choice. Paid leave is vested and earned time off. It belongs to the employee and they should be the ones to decide how to use it.
But if you are in a state that allows policies forcing employees to use paid leave during FMLA, there are some additional things to know and concerns to address.
- Heather Bussing
The Family and Medical Leave Act (FMLA) allows eligible employees working for covered employers to take up to 12 weeks of unpaid, protected leave during a 12-month period for absences resulting from covered family or medical reasons. A recent U.S. Department of Labor Opinion Letter reminds us how unpaid FMLA leave and employees’ accrued paid time off (PTO) may interact.
Policies requiring the application of accrued PTO
According to FMLA regulations, an employer may require its employees to apply or “substitute” their accrued PTO for any time missed on FMLA leave. In that way, an employee would receive compensation while on unpaid FMLA leave by virtue of the application of their PTO. In order to require PTO substitution for FMLA absences, however, the employer’s FMLA policy must spell out that requirement. If the policy is silent on the issue, employees may choose whether or not to apply their accrued PTO to any FMLA absences.
Supplementing workers’ comp and disability benefits with PTO
A workers’ compensation injury can qualify as an FMLA-covered absence. Likewise, while on an FMLA-covered absence, an employee may be receiving short-term and/or long-term disability benefits. During an approved FMLA absence where an employee is receiving workers’ compensation or disability benefits, an employer may not require the employee to apply accrued PTO to their absence. However, the employer and the employee can mutually agree that the employee may use accrued PTO to supplement their workers’ compensation or disability benefits to bring the employee’s total compensation during the absence up to their regular, full pay amount.
Supplementing state-based benefits with PTO
A number of states have enacted laws that provide paid leave to employees for family and medical absences, and it looks like other states may soon follow. In a January 14 Opinion Letter, the U.S. Department of Labor’s Wage and Hour Division addressed what should happen if an employee on FMLA leave is receiving some form of paid family or medical leave under state-based law. Under those circumstances, the rule for receipt of workers’ compensation or disability benefits would likewise apply to receiving state-based paid leave. If an employee on FMLA-covered leave is receiving state-based family and medical benefits, an employer may not require the employee to apply accrued PTO to their absence. However, the employer and the employee can mutually agree that the employee may use accrued PTO to supplement their state-based family and medical benefits to bring the employee’s total compensation during the absence up to their regular, full pay amount.
Next steps for employers
Now is a good time to review your FMLA policy to make sure it follows current legal requirements. Pay attention to whether and how your policy addresses the interplay between FMLA absences and accrued PTO.
- U. S. Dept. of Labor Wage and Hour Division Opinion Letter FMLA2025-01-A (1/14/25)
