The Department of Labor has issued an opinion letter regarding whether the Family and Medical Leave Act (FMLA) regulations pertaining to substitution of paid leave apply when employees take leave under state paid family leave programs in the same manner as they apply when employees take leave pursuant to paid disability plans.
According to the DOL, while state or local paid family or medical leave programs are not directly addressed the regulations, the same principles apply to such programs as apply to disability plans and workers compensation programs. That is, if an employee is receiving benefits from a state or local family medical leave program while their leave is also designated as FMLA, the substitution regulation does not apply. In this case, the employer and employee must mutually agree to use accrued PTO in order for the employee to receive full pay.
The DOL provides the following clarifying example:
Yvette takes eight weeks of continuous FMLA leave to care for her mother following her mother’s inpatient surgery. Yvette’s employer notifies her that the eight weeks are designated as FMLA leave. Caring for a parent with a serious health condition is also a qualifying reason under her state’s family leave program, and she applies for and receives benefits that replace two-thirds of her normal income each week that she is on leave, for up to six weeks.
During the six weeks that Yvette is receiving paid leave benefits under the state program, under the FMLA, her employer cannot require, and she cannot unilaterally elect, to substitute her accrued vacation under her employer’s leave plan and thereby receive full pay from her employer in addition to the state-paid benefit. However, if Yvette’s state permits an employee to use accrued paid leave concurrently with the state’s paid leave, the FMLA permits Yvette and her employer to agree that Yvette will use one-third of a week of her vacation time each week to supplement the portion of her full pay that is not provided by the state’s paid leave benefit.
During the final two weeks of Yvette’s FMLA leave, she will have exhausted her state program’s paid leave. At that point, her leave becomes unpaid leave, and the FMLA substitution provision applies. Yvette elects to use her employer-provided accrued paid vacation time to receive pay during the final two weeks of her FMLA leave.
Click here to access the full text of the opinion letter.
