DOL OPINION LETTER: FMLA2025-1-A
The Wage and Hour Division published an opinion letter addressing Family Medical Leave Act (FMLA) regulations.
The opinion letter addressed whether the FMLA regulations pertaining to substitution of paid leave apply when employees take leave under state or local paid family leave programs.
FACTS
- FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons (29 USC § 2612(a).
- FMLA provides for unpaid leave, the statute also allows employees to elect, or an employer require the employee, to "substitute" accrued employer-provided paid leave (like vacation, PTO, paid sick leave, etc.) for any part of the unpaid FMLA period (29 USC §2612(d)(2); 29 CFR § 825.207(a). Either the employer or employee can decide to have employer-provided paid leave "run concurrently (at the same time) with the unpaid FMLA leave."
- Some State Governments have passed legislation that provides paid family and medical leave for reasons such as personal medical, family care and parental.
- Some Local Governments have also adopted paid sick and/or family leave programs (municipal government employees.
The letter references that the employer nor the employee can require substitution under the FMLA, of employer-provided accrued paid leave during an absence for which an employee receives compensation provided by a disability or workers' compensation program. (29 CFR §825.207(d)-(e)
The concept of substituting paid leave under FMLA does not apply because the employee is taking leave and receiving benefits under a workers' compensation plan. The leave itself is unpaid.
OPINION
While state or local paid family or medical leave programs are not directly addressed in 29
CFR § 825.207 (d) or (e), the same principles apply to such programs as apply to disability
plans and workers compensation programs.
First, where an employee takes leave under a state or local paid family or medical leave
program, if the leave is covered by the FMLA, it must be designated as FMLA leave and the
employee must be given notice of the designation, which should include the amount of leave
to be counted against the employee’s FMLA leave entitlement.
Second, where an employee,
during leave covered by the FMLA, receives compensation from a state or local family or
medical leave program, 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.
Finally, 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, where state law
permits, to use the employee’s employer-provided accrued paid leave to supplement the
payments under a state or local leave program. Such an arrangement may be used, for
example, where a state paid leave program provides replacement income for only part of an
employee’s salary.
Further, if an employee uses a state or local paid family and medical leave program under
circumstances which do not qualify as FMLA leave, the employer may not count the leave
against the employee’s FMLA leave entitlement. For example, if a state paid family leave
law allows for paid leave to care for a family member with a medical condition that is not an
FMLA-qualifying serious health condition or serious injury or illness, leave taken under such
circumstances does not count against the employee’s FMLA leave entitlement.
Additionally, as with workers’ compensation benefits, if an employee’s leave under a state or
local paid family or medical leave program ends before the employee has exhausted the full
FMLA leave entitlement, the employee is still entitled to the protections of the FMLA.
Therefore, if the leave becomes unpaid leave for purposes of the state or local paid family or
medical leave program, then the FMLA substitution provision would apply and the employee
would be able to elect, or the employer would be able to require the employee, to substitute
employer-provided accrued paid leave consistent with 29 CFR § 825.207(a) and (e).
Source(s): Wage and Hour Division, received on January 14, 2025