Can an employer require the use of paid leave while an employee is on FMLA leave?

Family and Medical Leave Act (FMLA) regulations allow employers, with limited exceptions as discussed below, to require employees who are on FMLA leave to use accrued paid leave. Paid leave provided by the employer runs concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer's applicable paid leave policy during the period of FMLA leave.

Within the FMLA Notice of Eligibility and Rights & Responsibilities Notice, employers must advise employees of their right to use paid leave, indicate whether the employer will require the use of paid leave and list any conditions related to the use of accrued leave.

If the employer does not have a policy or past practice of requiring the use of paid leave, the regulations permit an eligible employee to choose to use accrued paid leave for unpaid FMLA leave. Whether required by the employer or chosen by the employee, the employee would receive pay according to the employer's paid leave policy and the use of paid leave time would be credited against the employee's 12-week FMLA entitlement.

While accrued leave may be used in most circumstances, there are certain limitations. Specifically, an employer may not require and an employee may not choose to use accrued paid leave during any FMLA leave when the employee is receiving wage replacement through a disability benefit plan or through a workers' compensation program. As these leaves are not unpaid leave periods, the provision for using accrued leave would not apply. However, where state law permits, employers and employees may agree to have accrued paid leave supplement the workers' compensation or disability plan benefits, which generally only replace a portion of the employee's normal wages. However, the administrative difficulty of tracking partial-day paid leave used to supplement the wages received through disability or workers' compensation plans may outweigh the benefit to the employer.

If the employer does not require substitution and the employee does not choose to use accrued paid leave during FMLA leave, the employee will remain entitled to all the paid leave earned or accrued under the terms of the employer's plan.