What you need to know to comply with both FMLA and state leave policies

Earlier this year, the U.S. Department of Labor (DOL) issued an opinion letter that addressed the Family and Medical Leave Act’s (FMLA) provision regarding the “substitution” of accrued paid time off (PTO) and its application to state and local paid leave programs. Read on to learn what you need to know.

Basic premise

The letter opened by reminding employers of the FMLA’s basic premise when it comes to the substitution of accrued PTO during FMLA leave: When an employee is taking FMLA leave, they can choose—or the employer can require them—to use PTO concurrent with the FMLA leave so long as the leave is truly unpaid.

For example, if an employee is taking leave and receiving payments under a workers’ compensation or disability program—and assuming that the leave also qualifies as FMLA leave—neither the employee nor the employer can require that PTO also be used during this time because the leave is not unpaid. Where state law permits, however, the employer and the employee can agree for the PTO to supplement (or top-off) workers’ comp or disability benefits when those benefits do not replace the employee’s entire salary.

State and local programs