FMLA leave is generally unpaid leave. However, the statute provides that the employee may elect or the employer may require the use of accrued paid leave (e.g., vacation, sick, medical, or family leave or personal time off, etc.) for periods of unpaid FMLA leave. The employee may decide not to elect to substitute paid leave, but the employer may then decide to require the use of accrued paid leave.

Accrued vacation, personal or family leave may be substituted for leave relating to the birth of a child, placement for adoption or foster care of a child, or care for a spouse, son, daughter, or parent who has a serious health condition.

Accrued vacation, personal or medical/sick leave may be substituted for care of a family member or the employee’s own serious health condition, however, the substitution of medical/sick leave is authorized only where the circumstances meet the employer's usual requirements for the use of such leave.

Employees who work for public agencies who receive payment for overtime hours in the form of compensatory time off, rather than cash, may not be required by the employer or elect to substitute accrued compensatory time off for periods of unpaid FMLA leave. The employee may request to use his/her balance of compensatory time for an FMLA reason.

See Regulations 29 CFR Part 825.207(i).

Please return to the Previous Page to continue learning about employee rights and benefits under FMLA.

Please return to the Main Menu for other information on FMLA.