DOL opinion letter sheds light on overlapping leave laws

Under the federal Family and Medical Leave Act (FMLA), employers may require, or employees may choose to use, accrued paid leave (e.g., vacation time) while taking unpaid FMLA leave. This is referred to as "substituting" paid leave, but the accrued paid leave would run concurrently with the unpaid FMLA leave.

An employer wondered what happens if an employee gets paid leave under a state law? The employer drafted a letter, and the U.S. Department of Labor's Wage and Hour Division answered that question on January 14, 2025, in an opinion letter.

Employees can't 'double dip'

When employees receive pay from a state or local family or medical leave program, the FMLA substitution provision doesn't apply to the part of leave that is paid. Because the substitution provision doesn't apply, neither the employee nor the employer may use the FMLA substitution provision to require the concurrent use of employer-provided paid leave during the part of the leave when the employee is being paid by the state or local program.

Topping off allowed

If employees have both employer-provided paid leave and disability or workers' compensation benefits, employers and employees may mutually agree, where state law permits, that the employer-provided accrued paid leave will supplement, or top-off, such benefits. This is helpful for employees when a disability or workers' compensation program only replaces a portion of their income — usually two-thirds of an employee's salary.

Thus, employees can receive their full regular pay while on FMLA leave.

Policies still rule

Employees' ability to use company-provided accrued paid leave is determined by the terms and conditions of employer leave policies. Employers aren't, for example, required to let employees use employer-provided paid sick leave for unpaid FMLA leave to care for a child with a serious health condition if the company sick leave policy allows paid sick leave only for an employee's illness, not a family member's.