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Question: A California employee is out for a non-work-related disability. Must we require that he use vacation and sick time while out on Family and Medical Leave Act (FMLA) leave, or is this at the employee’s option?

Answer: The regulations under the Family and Medical Leave Act (FMLA) and the California Family Leave Act (CFRA) allow for both employees and employers to elect to use accrued vacation, sick, or PTO time while the employee is on medical leave. The determining factor in reference to your question would be what your company policy and past practices dictate. As the employer, you can have in your leave policy the requirement for an employee to use their accrued leave time; however, you should be sure your employees understand this policy. If you have further questions or concerns, you may want to speak with your labor attorney for clarification.

An employee may choose to use, or an employer may require the employee to use, accrued paid leave to cover some or all of the FMLA/CFRA leave taken. The employee may choose, or the employer may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA or CFRA. The substitution of accrued sick or family leave is limited by the employer’s policies governing the use of such leave.