(a) Generally, FMLA leave is unpaid. However, under the
circumstances described in this section, FMLA permits an eligible
employee to choose to substitute paid leave for FMLA leave. If an
employee does not choose to substitute accrued paid leave, the employer
may require the employee to substitute accrued paid leave for FMLA
leave.
(b) Where an employee has earned or accrued paid vacation, personal
or family leave, that paid leave may be substituted for all or part of
any (otherwise) unpaid FMLA leave relating to birth, placement of a
child for adoption or foster care, or care for a spouse, child or parent
who has a serious health condition. The term ``family leave'' as used in
FMLA refers to paid leave provided by the employer covering the
particular circumstances for
which the employee seeks leave for either the birth of a child and to
care for such child, placement of a child for adoption or foster care,
or care for a spouse, child or parent with a serious health condition.
For example, if the employer's leave plan allows use of family leave to
care for a child but not for a parent, the employer is not required to
allow accrued family leave to be substituted for FMLA leave used to care
for a parent.
(c) Substitution of paid accrued vacation, personal, or medical/sick
leave may be made for any (otherwise) unpaid FMLA leave needed to care
for a family member or the employee's own serious health condition.
Substitution of paid sick/medical leave may be elected to the extent the
circumstances meet the employer's usual requirements for the use of
sick/medical leave. An employer is not required to allow substitution of
paid sick or medical leave for unpaid FMLA leave ``in any situation''
where the employer's uniform policy would not normally allow such paid
leave. An employee, therefore, has a right to substitute paid medical/
sick leave to care for a seriously ill family member only if the
employer's leave plan allows paid leave to be used for that purpose.
Similarly, an employee does not have a right to substitute paid medical/
sick leave for a serious health condition which is not covered by the
employer's leave plan.
(d)(1) Disability leave for the birth of a child would be considered
FMLA leave for a serious health condition and counted in the 12 weeks of
leave permitted under FMLA. Because the leave pursuant to a temporary
disability benefit plan is not unpaid, the provision for substitution of
paid leave is inapplicable. However, the employer may designate the
leave as FMLA leave and count the leave as running concurrently for
purposes of both the benefit plan and the FMLA leave entitlement. If the
requirements to qualify for payments pursuant to the employer's
temporary disability plan are more stringent than those of FMLA, the
employee must meet the more stringent requirements of the plan, or may
choose not to meet the requirements of the plan and instead receive no
payments from the plan and use unpaid FMLA leave or substitute available
accrued paid leave.
(2) The Act provides that a serious health condition may result from
injury to the employee ``on or off'' the job. If the employer designates
the leave as FMLA leave in accordance with Sec. 825.208, the employee's
FMLA 12-week leave entitlement may run concurrently with a workers'
compensation absence when the injury is one that meets the criteria for
a serious health condition. As the workers' compensation absence is not
unpaid leave, the provision for substitution of the employee's accrued
paid leave is not applicable. However, if the health care provider
treating the employee for the workers' compensation injury certifies 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 12-week entitlement is exhausted. As of the date
workers' compensation benefits cease, the substitution provision becomes
applicable and either the employee may elect or the employer may require
the use of accrued paid leave. See also Secs. 825.210(f), 825.216(d),
825.220(d), 825.307(a)(1) and 825.702(d) (1) and (2) regarding the
relationship between workers' compensation absences and FMLA leave.
(e) Paid vacation or personal leave, including leave earned or
accrued under plans allowing ``paid time off,'' may be substituted, at
either the employee's or the employer's option, for any qualified FMLA
leave. No limitations may be placed by the employer on substitution of
paid vacation or personal leave for these purposes.
(f) If neither the employee nor the employer elects to substitute
paid leave for unpaid FMLA leave under the above conditions and
circumstances, the employee will remain entitled to all the paid leave
which is earned or accrued under the terms of the employer's plan.
(g) If an employee uses paid leave under circumstances which do not
qualify as FMLA leave, the leave will not count against the 12 weeks of
FMLA leave to which the employee is entitled. For example, paid sick
leave used for a medical condition which is not a serious health
condition does not count against the 12 weeks of FMLA leave entitlement.
(h) When an employee or employer elects to substitute paid leave (of
any type) for unpaid FMLA leave under circumstances permitted by these
regulations, and the employer's procedural requirements for taking that
kind of leave are less stringent than the requirements of FMLA (e.g.,
notice or certification requirements), only the less stringent
requirements may be imposed. An employee who complies with an employer's
less stringent leave plan requirements in such cases may not have leave
for an FMLA purpose delayed or denied on the grounds that the employee
has not complied with stricter requirements of FMLA. However, where
accrued paid vacation or personal leave is substituted for unpaid FMLA
leave for a serious health condition, an employee may be required to
comply with any less stringent medical certification requirements of the
employer's sick leave program. See Secs. 825.302(g), 825.305(e) and
825.306(c).
(i) Section 7(o) of the Fair Labor Standards Act (FLSA) permits
public employers under prescribed circumstances to substitute
compensatory time off accrued at one and one-half hours for each
overtime hour worked in lieu of paying cash to an employee when the
employee works overtime hours as prescribed by the Act. There are limits
to the amounts of hours of compensatory time an employee may accumulate
depending upon whether the employee works in fire protection or law
enforcement (480 hours) or elsewhere for a public agency (240 hours).
Compensatory time off is not a form of accrued paid leave that an
employer may require the employee to substitute for unpaid FMLA leave.
The employee may request to use his/her balance of compensatory time for
an FMLA reason. If the employer permits the accrual to be used in
compliance with regulations, 29 CFR 553.25, the absence which is paid
from the employee's accrued compensatory time ``account'' may not be
counted against the employee's FMLA leave entitlement.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
