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Nov 16

TWG HR & Employment News

Posted by J.T. Klaus on Friday, November 16, 2018

Be Careful in Requiring an Employee to Use PTO During FMLA Leave

The Family and Medical Leave Act (FMLA) is a complicated collection of federal laws and regulations, making compliance difficult. One trap for the unwary is how employers deal with paid leave during FMLA leave.

Most employers know that the FMLA allows employers to have a policy requiring an employee to substitute paid leave during FMLA leave. Typically, employers require employees to use earned vacation, PTO (paid time off), and/or sick leave concurrently with FMLA leave. This is done so employees cannot extend their leave by using FMLA and paid leave consecutively instead of concurrently.

Some employers, however, overlook a subtlety in the FMLA regulations that prohibits employers from requiring employees to use paid leave, such as PTO, during any time in which employees are receiving some other form of paid leave.

FMLA regulations provide that “the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave.” However, the regulations also provide that if during FMLA leave, an employee also receives benefits in any amount from, for example, workers’ compensation or a disability plan, FMLA leave is not unpaid. Therefore, because the rule allowing employers to require employee substitution of paid leave only applies to unpaid FMLA leave, during any periods of FMLA leave when some type of income replacement is received by the employee, employers cannot require the substitution of paid leave. As noted, this prohibition from requiring the use of paid leave applies regardless of the amount of income replacement received by the employee.

For example, during the time an employee receives workers’ compensation benefits in any amount, the employer cannot require that the employee use PTO or other paid leave. If an employee taking FMLA leave is receiving short term disability benefits that replace some portion of his or her income, the employer cannot require the employee to use PTO or other paid leave. Policies can allow for an employee to elect to overlap their paid leave with any of these benefits received, but the employer cannot require the use of PTO or other paid leave under these circumstances. However, the employer can require the employee to use paid leave during a waiting period before disability benefits are received, because the limitation applies only when the employee is actually receiving income replacement benefits.

Employers should carefully review their FMLA policies, procedures, and employee handbooks to insure that they comply with FMLA regulations regarding the mandatory substitutions of paid leave. In certain states (Kansas is not one of them), there are state family and medical leave laws that also regulate the substitution of paid leave.

If you would like help in drafting or reviewing your FMLA policies and procedures, contact your TWG attorney or Eric Metz at or 316-630-8100.

This email is intended as an information source for the clients and friends of Triplett Woolf Garretson, LLC. Its content should not be construed as legal advice, and readers should not act upon information in its contents without professional counsel.


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