Q: Can we require employees to use accrued paid time off (PTO) before taking unpaid Family and Medical Leave Act (FMLA) leave, or must we provide FMLA leave and allow them to take PTO during the leave if needed?
Under the FMLA, employers may require employees to use accrued PTO, such as vacation leave, personal leave, or sick leave, concurrently with unpaid FMLA leave. This means an employer can mandate that employees substitute their accrued paid leave for unpaid FMLA leave, effectively running the two types of leave concurrently. For example, if an employee has two weeks of accrued PTO and begins FMLA leave, a policy of this type would require the employee to use accrued PTO for the first two weeks of the FMLA leave—the first two weeks of the employee’s FMLA leave would be paid through accrued PTO, and the remainder would be unpaid.
Alternatively, employers may have a policy that allows employees to request to use accrued PTO while out on FMLA leave. In this case, employees must comply with the employer’s normal procedures for requesting PTO. A policy of this type would allow employees to decide whether to use their accrued PTO to receive payment at any point during their FMLA leave. As long as employees comply with the employer’s normal procedures for requesting PTO, they could, for example, take four weeks of unpaid FMLA leave and then request to use accrued PTO to receive payment for the next two weeks of FMLA leave, then take the remainder of their FMLA leave unpaid.
As a final note, while the above policies are permitted under the federal FMLA, it’s important to remember that states may also have their own family and medical leave laws that intersect with, and may impose additional restrictions on, federal FMLA leave. Specifically, state leave laws may restrict employers’ ability to require the use of accrued PTO during FMLA leave. For example, Massachusetts’ Paid Family and Medical Leave Act (PFMLA) prohibits employers from requiring employees to use accrued PTO while on PFMLA leave. This means that if an employee is on PFMLA leave for a qualifying FMLA reason, the employer can’t require the use of accrued PTO. Instead, the employer is only permitted to have a policy that allows—but doesn’t require—employees to supplement their PFMLA benefits with accrued PTO during their leave.
Kayla Snider is an associate at Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. She can be reached at ksnider@skoler-abbott.com and 413-737-4753.