The U.S. Department of Labor (DOL) recently clarified the Family and Medical Leave Act (FMLA) substitution rule. This rule explains that employers cannot force employees to utilise accrued paid time off (PTO)—such as vacation, sick time or personal leave—instead of state or local paid family and/or medical leave benefits. The FMLA provides eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period for family and medical reasons like childbirth, adoption, personal serious health conditions, or caring for a family member with a serious health condition.

While FMLA leave is unpaid, employers may require employees to use their accrued PTO concurrently with FMLA leave for compensation. If an employee’s leave coincides with receiving disability or workers’ compensation benefits, the employer must designate that leave as FMLA leave. However, in this case, employers cannot require, and employees cannot unilaterally choose to use available PTO. Instead, they can only use the PTO to supplement these other benefits if there is mutual agreement between the employer and employee and if the state law allows it.

The DOL’s opinion letter further explains its position on the relation between state-paid family and medical leave programs and the FMLA’s substitution rule. If an employee is on leave, receiving paid family or medical benefits, and that leave also qualifies as FMLA leave, the employee may only use available PTO to supplement partial payments from these programs to achieve full pay. But, this is only possible if the employer and employee agree and if the law permits substitution. If the employee’s statutory family and/or medical leave benefits finish before the end of their FMLA leave, then the employer may require, or the employee may choose, to use available PTO for the rest of the FMLA leave.

Given the complexities of FMLA and state or local family and medical leave programs, employers should review their existing FMLA, paid family, medical leave, and other policies. They should also consult with counsel to comply with DOL’s interpretation of the substitution rule. Any policy that requires employees to utilize their accrued PTO concurrently with FMLA leave while receiving other benefits under a state or local program should be revised. The PTO can only be used to supplement an employee’s pay from a state family or medical leave program if there is mutual agreement between the employer and employee and law permits substitution.

If you are an employee seeking information about FMLA, paid family and medical leave, you may need to get in touch with your state’s Employment Development Department (EDD). For example, if you live in California, you may gather more information and explore more options by connecting with California’s EDD. You can access their customer service on the EDD’s official website, www.edd.ca.gov, or you can directly contact the EDD office by phone. Always remember that understanding your rights to leave and benefits are crucial for fostering a fair work environment. If you have difficulty reaching EDD, try checking online resources like those at eddcaller.com for tips on how to get through to EDD or get in touch with a EDD live person for advice regarding state family and medical leave programs.