The U.S. Department of Labor (DOL) recently published an opinion letter that says the federal Family and Medical Leave Act (FMLA) rules on “substitution” of paid leave don’t apply when an employee is receiving pay under a state or local paid family leave program.
FMLA leave is unpaid, but the FMLA regulations allow employers to require or employees to request the use of accrued paid leave during time off that would otherwise be unpaid. The FMLA regulations at 29 CFR 825.207 say that if an employee is receiving workers’ comp time loss benefits or payments under a disability policy, the leave isn’t unpaid so neither the employer nor the employee can insist on the use of accrued paid leave such as vacation, sick leave, or paid time off (PTO).
DOL opinion letter FMLA2025-1-A says that payments under state or local paid family leave programs should be treated the same as workers’ comp time loss benefits or payments under a disability policy under the FMLA rules. According to the FMLA rules, payments of vacation, sick leave, or paid time off while receiving benefits under a state or local paid family leave program during FMLA leave are only allowed by mutual agreement.
Tips: Employees always get the greater right when different types of leave are running concurrently, so it’s possible that an employee who is receiving benefits from a state paid family or medical leave program may have rights under state law to demand the use of accrued paid leave at the same time. State law may also prohibit the employer from requiring the use of paid leave.
- California’s state-administered Disability Insurance (DI) and Paid Family Leave (PFL) programs don’t grant employees the right to demand accrued paid leave at the same time they are receiving benefits under those programs. However, separate from those programs, California’s Paid Sick Leave (PSL) law allows employees who take time off for qualifying reasons to choose whether to use PSL (or other type of paid leave that the employer uses to comply with the PSL law) (California Labor Code 246(k)). Doing so may reduce the employee’s benefits under the state-administered paid leave programs, though.
- Effective July 1, 2024, Oregon employees are entitled to use all or a portion of accrued PTO, paid sick leave, vacation, or other paid leave while also receiving benefit payments under Paid Leave Oregon, up to 100 percent of wages (ORS 657B.030, as amended by SB 1515 (2024)). Employers may choose to allow employees to exceed 100 percent of wages.
- Employees in Washington are entitled to use paid sick time for any purpose that qualifies for protection under Washington Paid Sick Leave (WAC 296-128-630), so that includes time off that also qualifies for Washington Paid Family and Medical Leave (WPFML). If you offer supplemental benefit payments (salary continuation or paid time off) to employees receiving WPFML, employees may choose to use those payments but you cannot require them to do so (RCW 50A.15.060). Employees’ entitlement to use vacation, PTO, or other paid leave during WPFML depends on company policy (unless you use those leaves to comply with your paid sick leave obligations, in which case the paid sick leave rules apply).
Vigilant Members: Contact your Vigilant Law Group employment attorney with any questions about administering FMLA or state leave laws.
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