The US Department of Labor recently issued an Opinion Letter stating that an employer cannot require an employee to concurrently use employer-provided paid time off (“PTO”) while they are receiving state or local Paid Family Leave (“PFL”) benefits.

The FMLA permits an employer to require employees to use accrued PTO when they are on unpaid FMLA leave, unless the employee is receiving short term disability or workers’ compensation benefits. In those situations, the employer and employee may agree to apply employer-provided PTO to such absences from work.

In recent years, many states and locales have passed PFL, which was not contemplated when the FMLA rules were originally adopted. The Opinion Letter clarifies that PFL is to be treated the same as short term disability and workers’ compensation benefits. Meaning that while an employee on FMLA is receiving PFL benefits, the employer and employee must agree to use employer-provided PTO concurrently with PFL so the employee can receive their full pay while on PFL.

Although this Opinion Letter was published during the previous administration, it has yet to be rescinded by the current administration, which suggests it may be here to stay. 

With this change, employers should review their existing FMLA policy and consult your EGS attorney to determine whether any revisions are required.

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.