DOL Issues Opinion Letter Regarding Interaction of FMLA and State PFML Laws

The Department of Labor, or DOL, recently issued an opinion letter outlining key rules regarding the intersection of the following laws and programs: 

• Family and Medical Leave Act, or FMLA
• Local and state paid family and medical leave, or PFML, programs
• Employer-provided accrued leave such as PTO, vacation pay and sick pay 

As noted in the letter, a number of states now have PFML programs in place to provide paid leave for reasons such as own medical care, family care and parental leave. While the exact rules and qualifications can vary widely based on the jurisdiction, there is a general likelihood that use of these PFML programs can overlap with the usage of leave under the FMLA.  

Current FMLA Rules on Substitution of Accrued Paid Leave 

While time utilized under the FMLA is unpaid, the law states that employees can elect, or employers can require, the use of other forms of accrued paid leave such as vacation or sick pay.  

In cases where the employee is concurrently taking FMLA leave and receiving payments under either a disability benefit plan (e.g., short term disability) or a workers’ compensation program, neither the employer nor the employee can require usage of these other forms of accrued paid leave. But both parties can mutually agree that accrued leave payments can supplement payments from the disability plan or workers’ compensation program.

Guidance From New Opinion Letter  

The letter acknowledges that PFML programs are not directly addressed by the FMLA regulations, but concludes that the same concepts and principles outlined for disability benefit plans and workers’ compensation programs are generally applicable:  

• When leave is taken under a PFML program, if that leave reason is also covered by the FMLA (and all other applicable FMLA provisions have been met), the leave must be designated as FMLA leave.  

• If an employee receives payments from a local or state PFML program while on FMLA leave, the normal rules allowing substitution of accrued paid leave outlined above no longer apply. This means that neither the employee nor the employer can require the use of these other forms of accrued leave while the employee is receiving payments from a PFML program.   
• If the employee is not fully compensated by the PFML program, the employee and employer can mutually agree — where state law permits — to use the accrued paid leave to supplement the PFML payments.  

• If an employee’s entitlement to leave ends under a PFML program, but FMLA entitlement remains, the normal FMLA provisions around the substitution of accrued paid leave will apply.   
• Other than the rules pertaining to the substitution of accrued leave, all other protections found within the FMLA will continue to apply during any period when FMLA leave and PFML leave are running concurrently.  

State PFML Laws Regarding Usage of Accrued Paid Leave 

Most PFML states already have laws prohibiting employers from requiring employees on FMLA to use their accrued PTO, vacation pay and sick pay while receiving PFML benefits. These states include:  

• California
  • As of Jan. 1, 2025, California also prohibits employers from requiring employees to use earned and accrued time off in the two weeks before paid family leave benefits commence.
• Colorado
• Connecticut
  • Employers can only require use until the employee has two weeks of accrued leave remaining.
• Delaware
  • Employers can require use but cannot require exhaustion during PFML use.
• The District of Columbia
• Maine
• Maryland
• Massachusetts
• Minnesota
• New Jersey
• New York
• Oregon
• Washington 

DOL Example  

The DOL provided the following scenario to help illustrate the intersection with PFML. 

Yvette takes eight weeks of continuous FMLA leave to care for her mother following her mother’s inpatient surgery. Yvette’s employer notifies her that the eight weeks are designated as FMLA leave. Caring for a parent with a serious health condition is also a qualifying reason under her state’s family leave program, and she applies for and receives benefits that replace two-thirds of her normal income each week that she is on leave, for up to six weeks.  

During the six weeks that Yvette is receiving paid leave benefits under the state program, under the FMLA, her employer cannot require, and she cannot unilaterally elect, to substitute her accrued vacation under her employer’s leave plan and thereby receive full pay from her employer in addition to the state-paid benefit.  

However, if Yvette’s state permits an employee to use accrued paid leave concurrently with the state’s paid leave, the FMLA permits Yvette and her employer to agree that Yvette will use one-third of a week of her vacation time each week to supplement the portion of her full pay that is not provided by the state’s paid leave benefit.  

During the final two weeks of Yvette’s FMLA leave, she will have exhausted her state program’s paid leave. At that point, her leave becomes unpaid leave, and the FMLA substitution provision applies. Yvette elects to use her employer-provided accrued paid vacation time to receive pay during the final two weeks of her FMLA leave. 

Key Reminder 

While the DOL's opinion letter does not have the full force and effect of law, and may be rescinded by the new administration, courts typically grant deference to the agency's interpretive opinions of the laws it enforces, including the FMLA. 

You can review the full U.S. Department of Labor Opinion Letter on the DOL website. The Standard can help you manage FMLA and PFML leaves. Contact a representative near you for more information.