Can we legally stop PTO accrual during FMLA leave?

Q         Can we legally stop the accrual of paid time off (PTO) while an employee is on Family and Medical Leave Act (FMLA) leave?

A   An employee's PTO accrual during FMLA leave is governed by the employer's internal policy. According to §825.209(h) of the FMLA regulations, “an employee's entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).”

In other words, if your policy allows employees to accrue PTO while on paid vacation, employees on paid FMLA leave should accrue PTO, as well. Likewise, if your policy permits employees to accrue PTO while on unpaid leave. Wherever you land with your policy, make sure accrual applies consistently to all employees and all types of comparable leave.

Please keep in mind that the Families First Coronavirus Response Act (FFCRA) contains significant expansions to FMLA leave. The Act passed on Wednesday, March 18, and the forthcoming regulations could affect the answer to your question. It would be wise to review your state leave laws, as well.

Hannah Wurgaft is an attorney with Brann & Isaacson in Lewiston, Maine. You can reach her at hwurgaft@brannlaw.com.