The Department of Labor (“DOL”) has issued Opinion Letter FMLA2025-01-A on whether the Family and Medical Leave Act (the “FMLA”) regulations pertaining to substitution of paid leave apply when employees take paid leave under state family and medical leave programs.
Background. The FMLA entitles eligible employees to take up to 12 weeks’ unpaid leave: (i) for one’s own serious health condition; (ii) to care for a seriously ill or injured spouse or dependent; (iii) for the birth, adoption or placement of a child; or (iv) to deal with “exigencies” related to their spouse’s military deployment. It also provides employees with up to 26 weeks’ unpaid leave to care for a spouse who has a military service-related illness or injury.
The FMLA allows the employee to elect, or an employer to require, “substitution” of accrued employer-provided accrued paid leave (e.g., paid vacation, paid sick leave, etc.) for any part of the unpaid FMLA leave. The term “substitute” means that either the employer or employee, on their own, can decide to have employer-provided paid leave run concurrently with the unpaid FMLA leave.
If an employee takes FMLA leave and also receives payments under a state disability benefit plan or workers’ compensation program, the leave must be designated by the employer as FMLA leave and counted against the employee’s FMLA leave entitlement.
Additionally, if the employee has both employer-provided paid leave and disability or workers’ compensation payments, the employer and the employee may mutually agree, where state law permits, that the employer-provided accrued paid leave will supplement such benefits. This could be to the advantage of the employee in such instances as where a disability or workers’ compensation program only provides replacement income for a portion of the employee’s salary. Neither the employer nor the employee can require substitution of employer-provided paid leave during an absence for which the employee receives compensation provided by a state disability or workers’ compensation program.
FMLA2025-01-A. While state paid family or medical leave programs are not directly addressed in the FMLA regulations, the DOL states in FMLA2025-01-A that the same principles as apply to disability or workers’ compensation programs also apply to the state family or medical paid leave programs. Therefore, where an employee takes leave under a state family or medical paid leave program, and the leave is also 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.
In addition, where an employee during leave covered by the FMLA receives compensation from a state or local family or medical leave program, the FMLA-required substitution provision does not apply to the portion of leave that is compensated, so neither the employee nor the employer may use the FMLA substitution provision to unilaterally require the concurrent use of employer-provided paid leave. However, 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 employer-provided accrued paid leave to supplement the payments under a state or local leave program.
FMLA2025-01-A reminds us that if an employee uses a state or local paid family and medical leave program under circumstances which do not qualify as FMLA leave, the employer may not count that leave against the employee’s FMLA leave entitlement.
Additionally, as with workers’ compensation benefits, if an employee’s leave under a state or local paid family or medical leave program expires before the employee has exhausted the full FMLA leave entitlement, the employee is still entitled to the protections of the FMLA. Therefore, when the leave becomes unpaid leave for purposes of the state or local paid family or medical leave program, then the FMLA substitution provision would begin to apply and the employee would be able to elect, or the employer could require the employee, to substitute employer-provided accrued paid leave.
Opinion Letter FMLA2025-01-A can be found at: https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FMLA/2025_1_14_1_FMLA.pdf