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February 12, 2010
FMLA Paid Time Off Substitutions: Understanding the Rules

In a 2010 BLR webinar, “Solving PTO Problems: How to Reduce Unscheduled Absences Without Alienating Employees or Violating the Law,” attorney Catherine Moreton Gray outlined rights and responsibilities under the Family and Medical Leave Act for employers using a paid time off program.

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An employer may enforce its normal rules for use of vacation, sick days or PTO and other paid time off benefits even if they are less stringent than FMLA.

If an employee does not comply, he or she can still take FMLA leave, but without using paid time off benefits while on leave (unless the employer waives its normal rules, which would be required in order to force an employee to use the paid time off benefits).

Gray listed these examples of permitted employer requirements:

  • Vacation must be used in minimum increments.
  • Vacation is restricted to certain times of year.
  • Sick days are limited to an employee’s own condition.
  • Sick days are limited to illness, not wellness check-ups.
  • Advance notice or approval is required in order to use such paid time off benefits.

Gray used the following scenario as an example: Under an employer’s policy, vacation can only be used in eight-hour increments. An employee has a two-hour FMLA absence. The employee can elect to take eight hours of FMLA leave and receive vacation pay for it, or take two hours of unpaid FMLA leave. If the employer requires the substitution of paid time off while on FMLA, the employer must waive its eight-hour minimum increment rule and permit the employee to use two hours of vacation for the two-hour FMLA absence.

Catherine Moreton Gray is an associate attorney in the Labor and Employment section of Robinson & Cole LLP in Hartford, Conn. She has more than 20 years of experience in human resources and employment law. Contact her at

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