FMLA Articles

Got FMLA and PTO?

06/01/2021

Key to remember:  ​Employees have the right to use accrued paid time off for otherwise unpaid FMLA leave.

Applies to: All public employers and private employers with 50 or more employees.

Impact to customers: Employers often have policies regarding the use of paid time off, and these policies can interact with the FMLA.

 

Does your company have a paid time off (PTO) policy indicating that employees may take PTO only in four- or eight-hour increments? Perhaps such a policy also requires employees on intermittent FMLA to use all of their accrued PTO and if they do not have any PTO available, the leave will be unpaid.

Such a policy can pose a couple questions:

  • If an employee on intermittent FMLA leave needs to take two hours off, is the employer allowed to require the employee to take the minimum PTO amount of four hours or must they allow the employee to take only two hours of PTO?
  • Would the employer deduct only two hours from the employee’s FMLA leave bank or four hours?

While an employee may choose to substitute accrued paid leave for unpaid FMLA leave, employers may require employees to use accrued paid time off for otherwise unpaid FMLA leave. Employees would need to comply with the terms and conditions of the applicable paid leave policy.

If your paid leave policy requires paid leave to be used in certain increments (e.g., four or eight hours), and the employee wants to use paid leave, then FMLA leave will be used in the same increment of time as required by your paid leave policy – four or eight hours.

Therefore, if your employee needs to take two hours of FMLA leave for an appointment, your employee may either:

  • Choose to comply with your sick leave policy by taking four or eight hours of PTO for her doctor’s appointment. In that case she will use four or eight hours of FMLA leave), or
  • She may ask you to waive the requirement that PTO be used in four- or eight-hour increments and allow her to use two hours of PTO for her FMLA absence. In that case, she will use only two hours of PTO and only two hours of FMLA leave.

Adjusting any related policy so employees know what to expect when taking FMLA leave can help avoid any surprises.

Do not, however, mandate that employees use all their PTO BEFORE the leave will be counted as FMLA leave.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.

The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.