The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued an opinion letter clarifying how state and local paid medical leave programs interact with the Family and Medical Leave Act of 1993 (FMLA). This guidance provides important insight for employers managing employee leave policies.
FMLA grants eligible employees of covered employers up to 12 weeks of unpaid, job-protected leave annually for qualifying family and medical reasons. Under FMLA, employers may require employees to use their accrued paid time off (PTO) concurrently with unpaid FMLA leave, effectively substituting paid leave without extending the total 12-week entitlement. However, when employees receive disability benefits or workers’ compensation payments during FMLA leave, employers cannot unilaterally require the use of accrued PTO—though employees and employers may mutually agree to use PTO to supplement other paid benefits.
A key question arises for employers in jurisdictions with state or local paid medical and parental leave programs: Can employers require employees to use company-provided PTO while on FMLA leave if they are also receiving benefits from a state or local program? According to the WHD, the answer is no.
State and local paid leave programs provide partial wage replacement to employees needing time off for medical reasons or to care for a new child. These programs, typically funded through payroll taxes, vary by jurisdiction. Examples include California’s Paid Family Leave, New York’s Paid Family Leave, and Washington State’s Paid Family and Medical Leave.
The WHD’s opinion letter clarifies that when an employee receives compensation from a state or local leave program, neither the employer nor the employee can unilaterally require the concurrent use of employer-provided PTO during the portion of the leave covered by the state or local program. However, if the state or local benefits expire before the employee’s FMLA leave ends, employers may then require the use of PTO for the remaining unpaid portion of the FMLA leave.
Employers should assess which of their employees are subject to state and local paid leave programs and review their leave policies to ensure compliance with the WHD’s interpretation. Aligning policies with these guidelines is essential to avoid legal risks and ensure employees receive the correct benefits under both FMLA and state or local programs.
If you have any questions about the FMLA, state or local paid leave programs, or any other employment law matter, please contact Michael A. Airdo at mairdo@airdowerwas.com or James C. Jansen at jjansen@airdowerwas.com.