The answer depends on an employer’s policies. The FMLA does not require employers to allow PTO to accrue while an employee is on FMLA leave. However, the federal law does require that any benefits the employee would have earned during the leave period must still be maintained. That means, if the employer has a policy that allows for continued leave accrual while an employee is out on an unpaid status, including FMLA leave, vacations, etc., then that benefit must be continued. Many employers have policies that allow for PTO accrual during paid leave, but not unpaid leave. Usually, federal and state laws treat PTO accrual the same for personal, vacation time, and protected FMLA leave. Regardless of the policy, it must be consistently applied.
FMLA Regulations Regarding Paid Leave
The FMLA guarantees eligible employees of covered employers twelve workweeks of unpaid leave in a 12-month period. The FMLA regulations state that “[a]ny benefits that would be maintained while the employee is on other forms of leave, including paid leave if the employee substitutes accrued paid leave during FMLA leave, must be maintained while the employee is on FMLA leave.”
Review your Company’s FMLA Policies and Procedures
Considering the discretion that employers have, it is a good idea to take look at your policies and procedures to determine whether your employees should continue to accrue leave while out on FMLA leave. If you do not already address this issue in your policies, you should consider how you have handled this issue in the past and determine a set policy that reflects the needs and goals of your business. Consistency is key in all aspects of HR, so creating a specific policy that addresses the accrual of paid-time-off benefits during FMLA leave is a wise choice.
Another Issue That Relates to FMLA Leave and PTO
According to the U.S. Department of Labor (DOL), employers are required to run FMLA leave concurrently with other forms of paid leave. That means employers can no longer allow employees to use paid leave, such as vacation time, sick pay, short-term disability, or PTO, before using their unpaid FMLA leave. However, an employee can still choose to substitute accrued paid leave for unpaid FMLA leave. The only catch is that employees cannot postpone using FMLA leave until after their paid leave has been exhausted.
Is My Company Covered Under the FMLA?
If you are still wondering whether your particular business falls under the requirements of the FMLA, here is what you need to know. All public agencies, elementary and secondary schools, and private employers that have at least 50 employees are considered “covered employers.” If you fall into any of those categories and have enough employees, you are required to take all necessary steps to meet the FMLA requirements regardless of whether any leave requests are actually made by your employees.