May an employer or employee require accrued personal time off to be used concurrently with EFMLEA paid leave? (29 CFR 826.23, 826.24(d), 826.60(b), 826.160(c), 826.70)
Yes, the Department of Labor’s most recent position (Guidelines #33) is that, after the first two weeks of EFMLEA leave (usually ten workdays), the employer “may require that [its] employee take concurrently for the same hours expanded family and medical leave and existing leave that, under [the employer’s] policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if your employee (or a covered family member) is not ill.” The Guidelines note that, in such an instance, the employee must receive his or her full pay beyond the $200 per day cap for EFMLEA child care leave.
If an employee’s first two weeks of EFMLEA leave will run concurrently with EPSLA leave, then the parties may agree to supplement the employee’s EPSLA paid sick leave with preexisting employer-provided paid sick leave. However, employers should note that neither the employer nor the employee may insist that the employee use preexisting medical or sick leave concurrently with EFMLEA leave for child care leave at any point.
Notably, the Department of Labor’s current position is contrary to its initial position in the Guidelines in which the DOL initially stated that an employer could not insist that an employee take EFMLEA leave concurrently for the same hours without the employee’s consent. Because of the shifting position of the DOL, employers should monitor updates and consult with counsel for the latest developments and interpretation of the regulations. Employers should also try to obtain agreement with employees as to whether existing employer PTO runs concurrently with EFMLEA leave and document such agreements in writing.
Last updated June 22, 2020
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