New FMLA Regulations Restrict Substitution of Paid Leave for FMLA

3d_man_sick_with_red_crossThe substitution of paid leave for unpaid FMLA leave occurs often.  A employee eligible for FMLA leave will substitute accrued vacation, sick, medical, or other similar types of paid leave so that he avoids a loss of pay during the leave.  In most circumstances, employers also benefit because, when substitution occurs, the time counts against both the employee’s FMLA and paid time off entitlements.

Under the prior FMLA regulations, substitution of paid leave could be abused.  For example,  vacation leave was required to be substituted for any FMLA leave.  Common restrictions imposed on the use of vacation such as advanced notice or requiring it to be used in minimum blocks of time could not be imposed to prevent substitution.  This ready availability of paid leave surely was very tempting to some employees that could not otherwise use such time.

The new FMLA regulations, however, give employers the ability to reduce abuse.  Under the new 29 C.F.R. § 207, employers can require employees to meet all of the normal requirements of paid leave policies before permitting substitution.  For example, if a policy requires that vacation be taken in full day increments, an employer can deny substitution for an employee’s one-half day FMLA leave.  Similarly, if vacation time cannot be taken during a particular month, substitution could be denied during that time period.

The consequences of the new rule are obvious.  Employees might now be required to take unpaid FMLA leave rather than substitute paid leave.  As a result, the temptation to use the FMLA to obtain paid leave that they otherwise would not be entitled is eliminated.

4 thoughts on “New FMLA Regulations Restrict Substitution of Paid Leave for FMLA

  1. If I understand this correctly, an employee will no longer be able to use accrued vacation time to secure some kind of paycheck while using FMLA.


  2. Shadup!… Vacation time is designated for relaxation. Handle your business; FMLA allows for that. After dealing with the stress of illness you should be thankful vacation time is there for you.


  3. As an EMS paramedic, we are required to go out after 6 months of a pregnancy.The FMLA kicks in for the last 3 months. Great! When the baby is born there is no health insurance coverage, and no guarantee that the job once held will be kept available. Is this right? If we accrue leave time it is required to run concurrently with FMLA time. The rule should allow the FMLA time to kick in after leave time is exhausted: consectutive to the accrued leave time. Thus allowing women to use there earned time in conjunction with the FMLA time to ensure a joyous childbirth. This rule was obviously written by men.


  4. My Employer,in October changed our FMLA rules. Associates who take a continuous or intermittent leave for care of spouse, child or parent will be required to apply eligible paid time(sick leave, vacation and bonus) before unpaid time off is granted. Is this accurate to the FMLA Laws?


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