What happened?

On January 16, 2025, the Department of Labor issued two opinion letters on Family and Medical Leave (FMLA) and the Fair Labor Standards Act (FLSA). This update concerns the FMLA opinion letter.

Overview

If they qualify, the opinion letter clarifies that state or local paid family and medical leave programs must be designated as FMLA leave. Still, the FMLA substitution provision does not apply to compensated leave. It highlights the increasing number of state and local governments providing paid family and medical leave for various reasons, including personal medical, family care, and parental leave.

• Employers cannot require employees to use accrued paid leave concurrently with state or local paid leave, but they can agree to supplement state benefits with employer-provided paid leave if state law permits.
• The principles of 29 CFR § 825.207(d) and (e) apply to state or local paid family or medical leave programs that qualify as FMLA leave.
• The substitution provision does not apply to compensated leave under state or local programs, but all other FMLA protections remain in effect.
• The opinion is based on the specific facts and circumstances presented in the request.

Additional Details

• Eligible employees can take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons and up to 26 weeks to care for a covered service member.
• Employees can elect, or employers can require, the substitution of accrued paid leave for unpaid FMLA leave. This means paid leave can run concurrently with unpaid FMLA leave.
• If an employee receives payments under a disability or workers’ compensation program, the leave must be designated as FMLA leave if it qualifies. The substitution provision does not apply to compensated leave.
• If leave under a state or local paid family or medical leave program qualifies as FMLA leave, it must be designated as such, and the employee must be notified.
• The FMLA substitution provision does not apply to the portion of leave compensated by state or local programs. Neither the employer nor the employee can unilaterally require concurrent use of employer-provided paid leave during compensated leave.
• If state or local paid leave does not fully compensate the employee, the employer, and employee may agree to use employer-provided paid leave to supplement the state or local benefits where state law permits.
• Leave taken under state or local programs for reasons not qualifying under FMLA cannot be counted against the employee’s FMLA entitlement.
• Illustrative Example:
  • Scenario: An employee, Jane, takes eight weeks of FMLA leave to care for her mother. She receives state benefits for six weeks, replacing two-thirds of her income.
  • Application: During the six weeks of state benefits, neither Jane nor her employer can require the use of accrued vacation to receive full pay. However, they can agree to supplement the state benefits with vacation time if state law allows. Jane can use her accrued vacation time for the remaining two weeks of unpaid FMLA leave.

Source References

• DOL FMLA Opinion Letter (January 16, 2025)

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