Ask the Expert: Can We Exhaust PTO During FMLA Leave?

Can we require an employee to exhaust PTO while on FMLA?

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Leave provided under the FMLA is unpaid. However, the employee may elect or the employer may require that paid leave be substituted for unpaid FMLA leave under the following circumstances:

Accrued paid leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. When an employee chooses or an employer requires substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy in order to be paid.

Disability leave. Leave taken pursuant to a disability leave plan would be considered FMLA leave for a serious health condition and counted against the leave entitlement permitted under FMLA. Because leave taken under a disability benefit plan is paid (at least in part), an employer may not require the employee to substitute accrued paid leave during such disability leave. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan provides only replacement income for ²/₃ of an employee’s salary.

Workers’ compensation. Time taken off from work due to an injury covered under a state workers’ compensation program may be counted against the employee’s FMLA leave entitlement if the employer designates the leave as FMLA leave. Because the workers’ compensation absence is paid (at least in part), the employer may not require the substitution of accrued paid leave during workers’ compensation leave. However, employers and employees may agree, where state law permits, to have paid leave supplement workers’ compensation benefits. When workers’ compensation benefits end, the employee may elect or the employer may require the use of accrued paid leave.

Light duty. If the healthcare provider treating the employee for the workers’ compensation injury certifies that the employee is able to return to a light-duty job but is unable to return to the same or equivalent job, the employee may decline the employer’s offer of a light-duty job. As a result, the employee may lose workers’ compensation payments, but is entitled to remain on unpaid FMLA leave until the employee’s FMLA leave entitlement is exhausted.

The FMLA regulations make it clear that time spent working in a light-duty assignment may not be counted against the employee’s FMLA leave allotment. An employee’s acceptance of the light-duty assignment does not constitute a waiver of the employee’s prospective rights, including the right to be restored to the same position the employee held when the FMLA leave commenced or an equivalent position.

The employee’s right to restoration is essentially held in abeyance during the period of time an employee performs a light-duty assignment pursuant to a voluntary agreement between the employee and the employer. Note, however, that an employee who voluntarily returns to a light-duty position retains the right to job restoration to the same or equivalent position only until the end of the 12-month period that the employer uses to calculate FMLA leave.