DOL Issue[s] Opinion Letter on Whether FMLA Regulations Pertaining to Substitution of Paid Leave Apply When Employees Take Leave Under State or Local Paid Family Leave Programs

SESCO Management Consultants

While the Family and Medical Leave Act (FMLA) provides for unpaid leave for employees that work for an employer with 50 or more employees, the FMLA also allows the employee to elect, or an employer to require the employee, to “substitute” accrued employer-provided paid leave (e.g., paid vacation, paid sick leave, etc.) for any part of the unpaid FMLA period. The term “substitute” means that either the employer or employee, on their own, can decide to have employer-provided paid leave run concurrently with the unpaid FMLA leave. However, the U.S, Department of Labor (DOL) has explained that neither the employer nor the employee can require substitution, under the FMLA, of employer-provided accrued paid leave during an absence for which the employee receives compensation provided by a disability or workers’ compensation program. Likewise, where an employee, during leave covered by the FMLA, receives compensation from a state or local family or medical leave program, the DOL has now stated that the FMLA substitution provision does not apply to the portion of leave that is compensated.

  • Because the substitution provision does not apply, neither the employee nor the employer may use the FMLA substitution provision to unilaterally require the concurrent use of employer-provided paid leave during the portion of the leave that is compensated by the state or local program.
  • If the employee is receiving compensation through state or local paid family or medical leave that does not fully compensate the employee for their FMLA covered leave, and the employee also has available employer-provided paid leave, the employer and the employee may agree, to use the employee’s employer-provided accrued paid leave to supplement the payments under a state or local leave program.

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