Can You Force PTO Use Before Unpaid FMLA Leave? Check State Law First

The short answer is yes, under federal law. The Family and Medical Leave Act lets employers require employees to use accrued paid time off – vacation, personal leave, sick leave – at the same time as unpaid FMLA leave. That means an employer can mandate that PTO runs concurrently with FMLA, effectively turning the first weeks of leave into paid time.

Say an employee has two weeks of PTO and starts FMLA leave. A mandatory-substitution policy would require them to use that PTO for the first two weeks. Those weeks are paid. The rest of the 12-week FMLA entitlement is unpaid.

Alternatively, an employer can set up a policy that allows – but does not require – employees to use PTO during FMLA leave. In that case, the employee decides when to tap their accrued time, as long as they follow the employer's normal request procedures. An employee could take four weeks unpaid, then request PTO for the next two weeks, then go back to unpaid leave for the remainder.

Both approaches are permitted under the federal FMLA. The catch is state law.

Several states have their own family and medical leave laws that override the federal default. Massachusetts is a clear example. Its Paid Family and Medical Leave Act prohibits employers from requiring employees to use accrued PTO while on PFMLA leave. If an employee is on PFMLA leave for a reason that also qualifies under the FMLA, the employer cannot mandate PTO substitution. The policy can only allow – not require – the employee to supplement PFMLA benefits with accrued time.

Other states with similar restrictions include California, New York, and Washington. The rules vary by jurisdiction, and the intersection of federal and state leave law creates traps for employers who assume the federal answer is the only answer.

Kayla Snider, an associate at Skoler, Abbott & Presser in Springfield, Massachusetts, said employers should review their PTO-substitution policies against the state leave laws in every jurisdiction where they have employees. A policy that is legal under the FMLA may violate state law in Massachusetts or California.

The practical take: federal law gives you the green light to require PTO use before unpaid FMLA leave. State law may put up a red light. Check the state rules before enforcing a mandatory-substitution policy.