Q. May an employee substitute paid leave for unpaid?
A. Under, an employee may choose to substitute accrued paid leave for unpaid leave if the employee complies with the terms and conditions of your applicable paid leave policy.
The regulations also make clear that substituting paid leave for unpaid FMLA leave means that the two types of leave run concurrently, with the employee receiving pay pursuant to the paid leave policy, and receiving protection for the leave under the FMLA. If the employee does not choose to substitute applicable accrued paid leave, you may require the employee to do so.
The U.S. Department of Labor offers an example to illustrate these leave policies:
“Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer’s sick policy only permits employees to take sick leave in full days. Neila may either choose to comply with her employer’s sick leave policy by taking a full day of sick leave for her doctor’s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours.”
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