Most New York authority, including many insurance companies and law firms, have advised that an employer may require an employee to substitute or supplement with accrued paid time off (vacation, sick, PTO) if the leave qualifies for both FMLA and PFL at the same time. This is based on PFL regulation 380-6.2(c).
The U.S. Department of Labor has, however, issued regulations for FMLA that do not permit an employer to require an employee to use accrued paid time off if the leave under FMLA is otherwise paid. The DOL specifically prohibits an employer requiring an employee to use accrued leave for FMLA that occurs concurrently with Worker’s Compensation or Disability leaves. See 29 C.F.R. 825.207(d) and (e). While some have suggested that this regulation applies only to Worker’s Compensation or disability for pregnancy, the only court to address this issue has held that any time FMLA leave is paid by another source, whether or not that source is the employer, FMLA is not unpaid and an employer may not require an employee to use accrued paid leave. See Repa v. Roadway Express, 06-2360 (7th Cir. 2007).
In light of this conflict, we advise you to review, and, if necessary, change your PFL policy and practice to reflect that employers are not likely to be able to require an employee to use accrued paid time off during the period of time where PFL and FMLA run concurrently.
For example, if your current policy states the following:
In accordance with our FMLA policy, when PFL and FMLA occur at the same time, you will be required to use your PTO to supplement PFL until it is exhausted.
We recommend changing it to:
In accordance with our FMLA policy, when PFL and FMLA occur at the same time, you will be required to use your PTO to supplement PFL only if permitted by law. You may choose to use your PTO to supplement PFL. At the time you take leave, this option will be discussed with you. Once your PFL is exhausted, our FMLA policy will still apply and you will be required to use your PTO.
Employers who have already charged employees on PFL and FMLA with loss of accrued leave will need to review, and where necessary, reinstate accrued leave back to employees.
Nothing prevents an employer and employee from agreeing to either substitute or supplement PFL with accrued leave, whether the employee is also taking FMLA or not.
As with all matters relating to this new statute, changes in interpretation are inevitable. If you need assistance with PFL, or other legal issues affecting your employees, please contact Tom Conlon at (607) 231-6744 or tconlon@hhk.com or John Fish at (607) 231-6712 or jfish@hhk.com or Dawn Lanouette at (607) 231-6917 or dlanouette@hhk.com.