January 14, 2025
FMLA, State Paid Leave, and Employer-Provided Paid Leave – U.S. DOL Opinion Letter Clarifies
On January 14th, the U.S. Department of Labor (DOL) issued an opinion letter clarifying how employers should administer federal Family and Medical Leave (FML) concurrently with a state FML paid leave program, and the employer’s own paid leave (sick, vacation, PTO). Here is the DOL’s example.
Yvette takes eight weeks of continuous FMLA leave to care for her mother following her mother’s inpatient surgery. Yvette’s employer notifies her that the eight weeks are designated as FMLA leave. Caring for a parent with a serious health condition is also a qualifying reason under her state’s family leave program, and she applies for and receives benefits that replace two-thirds of her normal income each week that she is on leave, for up to six weeks.
The question is, can the employer require Yvette to use the employer-provided paid leave to supplement the one-third of her normal weekly income that is not covered under the state program? The answer is, “No.” The employer and the employer may agree to do so, but neither can unilaterally make that decision. The DOL shares three reminders.
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 (substituting the employer-provided paid leave for any portion of unpaid FMLA leave) 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.
The same rationale applies to an employee who is out on leave and receiving workers’ compensation or disability benefits.
