[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.207]



[Page 763-765]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

 Subpart B_What Leave Is an Employee Entitled To Take Under the Family 

                         and Medical Leave Act?

 

Sec.  825.207  Is FMLA leave paid or unpaid?



    (a) Generally, FMLA leave is unpaid. However, under the 

circumstances described in this section, FMLA permits an eligible 

employee to choose to substitute paid leave for FMLA leave. If an 

employee does not choose to substitute accrued paid leave, the employer 

may require the employee to substitute accrued paid leave for FMLA 

leave.

    (b) Where an employee has earned or accrued paid vacation, personal 

or family leave, that paid leave may be substituted for all or part of 

any (otherwise) unpaid FMLA leave relating to birth, placement of a 

child for adoption or foster care, or care for a spouse,



[[Page 764]]



child or parent who has a serious health condition. The term ``family 

leave'' as used in FMLA refers to paid leave provided by the employer 

covering the particular circumstances for which the employee seeks leave 

for either the birth of a child and to care for such child, placement of 

a child for adoption or foster care, or care for a spouse, child or 

parent with a serious health condition. For example, if the employer's 

leave plan allows use of family leave to care for a child but not for a 

parent, the employer is not required to allow accrued family leave to be 

substituted for FMLA leave used to care for a parent.

    (c) Substitution of paid accrued vacation, personal, or medical/sick 

leave may be made for any (otherwise) unpaid FMLA leave needed to care 

for a family member or the employee's own serious health condition. 

Substitution of paid sick/medical leave may be elected to the extent the 

circumstances meet the employer's usual requirements for the use of 

sick/medical leave. An employer is not required to allow substitution of 

paid sick or medical leave for unpaid FMLA leave ``in any situation'' 

where the employer's uniform policy would not normally allow such paid 

leave. An employee, therefore, has a right to substitute paid medical/

sick leave to care for a seriously ill family member only if the 

employer's leave plan allows paid leave to be used for that purpose. 

Similarly, an employee does not have a right to substitute paid medical/

sick leave for a serious health condition which is not covered by the 

employer's leave plan.

    (d)(1) Disability leave for the birth of a child would be considered 

FMLA leave for a serious health condition and counted in the 12 weeks of 

leave permitted under FMLA. Because the leave pursuant to a temporary 

disability benefit plan is not unpaid, the provision for substitution of 

paid leave is inapplicable. However, the employer may designate the 

leave as FMLA leave and count the leave as running concurrently for 

purposes of both the benefit plan and the FMLA leave entitlement. If the 

requirements to qualify for payments pursuant to the employer's 

temporary disability plan are more stringent than those of FMLA, the 

employee must meet the more stringent requirements of the plan, or may 

choose not to meet the requirements of the plan and instead receive no 

payments from the plan and use unpaid FMLA leave or substitute available 

accrued paid leave.

    (2) The Act provides that a serious health condition may result from 

injury to the employee ``on or off'' the job. If the employer designates 

the leave as FMLA leave in accordance with Sec.  825.208, the employee's 

FMLA 12-week leave entitlement may run concurrently with a workers' 

compensation absence when the injury is one that meets the criteria for 

a serious health condition. As the workers' compensation absence is not 

unpaid leave, the provision for substitution of the employee's accrued 

paid leave is not applicable. However, if the health care provider 

treating the employee for the workers' compensation injury certifies the 

employee is able to return to a ``light duty job'' but is unable to 

return to the same or equivalent job, the employee may decline the 

employer's offer of a ``light duty job''. As a result the employee may 

lose workers' compensation payments, but is entitled to remain on unpaid 

FMLA leave until the 12-week entitlement is exhausted. As of the date 

workers' compensation benefits cease, the substitution provision becomes 

applicable and either the employee may elect or the employer may require 

the use of accrued paid leave. See also Sec. Sec.  825.210(f), 

825.216(d), 825.220(d), 825.307(a)(1) and 825.702(d) (1) and (2) 

regarding the relationship between workers' compensation absences and 

FMLA leave.

    (e) Paid vacation or personal leave, including leave earned or 

accrued under plans allowing ``paid time off,'' may be substituted, at 

either the employee's or the employer's option, for any qualified FMLA 

leave. No limitations may be placed by the employer on substitution of 

paid vacation or personal leave for these purposes.

    (f) If neither the employee nor the employer elects to substitute 

paid leave for unpaid FMLA leave under the above conditions and 

circumstances, the employee will remain entitled to



[[Page 765]]



all the paid leave which is earned or accrued under the terms of the 

employer's plan.

    (g) If an employee uses paid leave under circumstances which do not 

qualify as FMLA leave, the leave will not count against the 12 weeks of 

FMLA leave to which the employee is entitled. For example, paid sick 

leave used for a medical condition which is not a serious health 

condition does not count against the 12 weeks of FMLA leave entitlement.

    (h) When an employee or employer elects to substitute paid leave (of 

any type) for unpaid FMLA leave under circumstances permitted by these 

regulations, and the employer's procedural requirements for taking that 

kind of leave are less stringent than the requirements of FMLA (e.g., 

notice or certification requirements), only the less stringent 

requirements may be imposed. An employee who complies with an employer's 

less stringent leave plan requirements in such cases may not have leave 

for an FMLA purpose delayed or denied on the grounds that the employee 

has not complied with stricter requirements of FMLA. However, where 

accrued paid vacation or personal leave is substituted for unpaid FMLA 

leave for a serious health condition, an employee may be required to 

comply with any less stringent medical certification requirements of the 

employer's sick leave program. See Sec. Sec.  825.302(g), 825.305(e) and 

825.306(c).

    (i) Section 7(o) of the Fair Labor Standards Act (FLSA) permits 

public employers under prescribed circumstances to substitute 

compensatory time off accrued at one and one-half hours for each 

overtime hour worked in lieu of paying cash to an employee when the 

employee works overtime hours as prescribed by the Act. There are limits 

to the amounts of hours of compensatory time an employee may accumulate 

depending upon whether the employee works in fire protection or law 

enforcement (480 hours) or elsewhere for a public agency (240 hours). 

Compensatory time off is not a form of accrued paid leave that an 

employer may require the employee to substitute for unpaid FMLA leave. 

The employee may request to use his/her balance of compensatory time for 

an FMLA reason. If the employer permits the accrual to be used in 

compliance with regulations, 29 CFR 553.25, the absence which is paid 

from the employee's accrued compensatory time ``account'' may not be 

counted against the employee's FMLA leave entitlement.



[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]