When Can an Employer Require PTO to Run Concurrently with FMLA Leave?

The following article was submitted by Brody and Associates, LLC. It is posted here with permission. 

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The Family and Medical Leave Act provides eligible employees of covered employers with unpaid, job-protected leave for qualifying family and medical reasons.

Many employees, however, have accrued vacation, sick leave, or paid time off, referred to in this article as paid leave, available when an FMLA-qualifying absence begins.

This raises a practical question: may an employer require the employee to use that paid leave at the same time as FMLA leave?

In many circumstances, the answer is yes, but the authority is not unlimited. 

The Basic Rule: Paid Leave May Be Required to Run Concurrently with the FMLA 

Under the FMLA’s substitution rule, an eligible employee may elect, or an employer may require, the use of accrued paid leave for an otherwise unpaid portion of FMLA leave.

Substitution means the paid leave and FMLA leave run concurrently.

Paid leaves supply compensation while the FMLA supplies job protection and continued group-health coverage on the required terms. The employee does not receive two separate blocks of leave. 

An eligible employee may elect, or an employer may require, the use of accrued paid leave.

For example, under federal law, if an employee takes six weeks of qualifying FMLA leave and has three weeks of available paid leave, an employer with a lawful mandatory substitution policy may require the employee use the paid leave for the first three weeks of the FMLA leave.

Those weeks are both paid and FMLA protected. The final three weeks may be unpaid but remain protected.

The employee only has the right to use six, not nine, weeks of FMLA entitlement. 

When an Employer May Require Concurrent Use 

An employer generally may require concurrent use when several conditions are satisfied.

First, the absence must qualify for FMLA leave and be properly designated as such.

Second, the employee must have accrued paid leave available.

Third, the paid-leave category must cover the reason for the absence under the employer’s normal policy.

Finally, the employer must provide advance notice that paid leave will be substituted and comply with all applicable federal, state, and local requirements. 

The employer must provide advance notice that paid leave will be substituted.

The employer’s ordinary leave rules matter.

If the paid leave may be used for any reason, it will usually be available during an unpaid FMLA absence.

A more limited sick-leave policy may permit use only for the employee’s illness or care of specified relatives.

An employer generally is not required to broaden that policy simply because the absence also qualifies under the FMLA.

Conversely, it should not impose conditions on FMLA related leaves that it does not ordinarily apply to the normal use of paid leave. 

Notice Is Essential 

An employer should not simply deduct Paid Leave without explaining why.

The FMLA rights and responsibilities notice should state whether the employee may elect, or will be required, to use paid leave, identify any conditions associated with receiving pay, and explain that unpaid FMLA leave may remain available even if the employee does not qualify for the employer’s paid leave.

Once the employer has sufficient information, it should also provide a timely designation notice stating that the qualifying absence will count against the employee’s FMLA entitlement. 

Important Limits on Mandatory Substitution 

The substitution rule applies to accrued employer provided paid leave used during an otherwise unpaid FMLA period.

It generally does not permit either party to force substitution while the employee is receiving wage-replacement payments under a short-term disability plan or workers’ compensation program.

Those payments are not treated as accrued paid leave. If the underlying absence qualifies, the employer may still designate it as FMLA leave so that the protections and benefit period run concurrently.

Where applicable law and the governing plan permit, the employer and employee may agree to use PTO to supplement a partial benefit payment. 

Similar principles may apply when an employee receives benefits through a state or local paid family and medical leave program.

Employers must also account for more protective state or local leave laws.

In a January 2025 opinion letter, the U.S. Department of Labor concluded that neither the employer nor employee may unilaterally require accrued employer-provided paid leave during the portion of an FMLA absence for which state program benefits are being paid.

Subject to state law, the parties may agree to use PTO to supplement the benefit.

During an unpaid waiting period or after program benefits end, the ordinary substitution rule may again apply. 

Employers must also account for more protective state or local leave laws, collective bargaining agreements, employment agreements, and their own policies.

A jurisdiction may restrict deductions, require employee consent, dictate benefit coordination, or provide broader leave rights. Federal FMLA compliance is therefore only one part of the analysis. 

Connecticut Law Changes the Analysis 

Connecticut employers must comply with the federal FMLA, the Connecticut Family and Medical Leave Act and Connecticut Paid Leave.

These programs serve different functions. state FMLA generally provides eligible employees with unpaid, job protected leave, while paid leave provides eligible workers with income replacement benefits but does not create job restoration rights.

When the same absence qualifies under both the federal and state leave laws, the job protected periods should ordinarily run concurrently rather than consecutively. 

Connecticut FMLA generally applies to employers with at least one employee, subject to statutory exclusions.

Coverage and eligibility also differ.

Connecticut FMLA generally applies to employers with at least one employee, subject to statutory exclusions, and an employee generally becomes eligible after three consecutive months of employment without a minimum hours worked requirement.

Federal FMLA coverage and eligibility are narrower.

As a result, some Connecticut employees may have state FMLA protection and potential paid leave benefits even when they do not qualify for federal FMLA leave. 

Connecticut’s Two-Week PTO Preservation Rule 

Connecticut law contains an important employee protection that differs from the federal rule.

Under Connecticut FMLA, an employer may require an employee use accrued paid leave during otherwise unpaid FMLA leave, but the employee may elect to preserve up to two weeks of accrued paid leave to use at a later date.

Connecticut law contains an important employee protection.

Accordingly, a Connecticut policy should not require every available paid leave hour be used during state FMLA leave without recognizing the employee’s statutory right to retain up to two weeks. 

For example, assume an employee has four weeks of paid leave and takes eight weeks of federal FMLA and Connecticut FMLA leave.

While the employer’s policy may require paid leave substitution, it must expressly allow the employee to save two weeks of paid leave time for future use.  

Coordinating PTO with Connecticut Paid Leave Benefits 

Connecticut paid leave benefits may run during the same absence as federal FMLA and state FMLA leave, but paid leave is a wage replacement program rather than employer provided accrued paid leave.

Connecticut guidance states that accrued paid leave may be used in addition to Connecticut paid leave benefits, while total compensation during leave may not exceed 100% of the employee’s regular weekly earnings. 

Federal guidance issued in 2025, also cautions that, during the portion of an FMLA qualifying absence for which a state paid leave program is replacing wages, neither party may unilaterally require federal “substitution” of accrued employer leave.

Connecticut separately permits employees to receive Connecticut paid leave benefits together with employer provided paid leave, subject to the compensation cap.

Employers should confirm that combined payments do not create an impermissible overpayment.

Employers should therefore distinguish between compelling substitution under the federal rule and allowing supplementation of Connecticut paid leave benefits as authorized by state law, the employer’s benefit plans, and any employee election required under the circumstances. 

The same caution applies to short term disability and workers’ compensation benefits.

The absence may run concurrently with federal FMLA and Connecticut FMLA protection when the statutory requirements are met, but wage replacement payments and accrued paid leave should be coordinated under the governing plans and laws.

Employers should confirm that combined payments do not create an impermissible overpayment and that the employee’s two-week Connecticut FMLA preservation right is honored. 

Common Employer Mistakes 

• Failing to designate leave. Paid leave use alone does not eliminate the need for the FMLA notice and designation process. 
• Treating paid leave and FMLA as consecutive entitlements. When properly substituted, the leaves run together rather than extending the total absence. 
• Forcing paid leave during disability or state wage replacement benefits. Employers should determine whether unilateral substitution is permitted before making deductions. 
• Applying inconsistent rules. Selective enforcement can create an interference of retaliation or discrimination. 
• Overlooking Connecticut law. A Connecticut employee may preserve up to two weeks of accrued paid leave during Connecticut FMLA leave. Application of the paid leave benefit requires a separate analysis. 

Practical Steps for Employers 

Employers should review their federal FMLA, Connecticut FMLA, paid leave, disability, workers’ compensation, and Connecticut paid leave policies as a coordinated system.

A Connecticut policy should state whether substitution is ordinarily mandatory, explain the employee’s right to preserve up to two weeks of accrued paid leave under Connecticut FMLA, identify which leave banks apply to which absences, and describe how paid leave may coordinate with partial wage replacement benefits without exceeding applicable compensation limits.

HR and payroll teams should use consistent workflows, provide both federal and Connecticut notices when applicable, and verify that paid leave balances, benefit payments, and statutory leave entitlements are reduced correctly. 

Key Takeaway 

Employers can often require employees to use accrued paid leave concurrently with unpaid FMLA leave, but Connecticut adds important qualifications.

For Connecticut FMLA covered leave, an employee may preserve up to two weeks of accrued paid leave.

Where Connecticut paid leave or another program is replacing wages, employers must separately analyze whether Paid Leave may be required, elected, or used to supplement benefits and ensure that total compensation remains within applicable limits.

Careful policy drafting, dual law notices, and case by case coordination can preserve employee rights while reducing compliance risk.

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About the authors: Robert Brody is managing partner at Brody and Associates, LLC, which he founded in 1997. Before that Brody was a managing partner for Jackson Lewis, one of the largest management labor and employment law firms in the U.S. Matthew Chiota is an associate at Brody and Associates, LLC, advising clients on labor, employment, and benefits law matters.