On Jan. 14, 2025, the U.S. Department of Labor (DOL) issued Opinion Letter FMLA2025-01-A, clarifying the complex interaction between (1) the federal Family and Medical Leave Act (FMLA), (2) state-paid family and medical leave program (PFML) benefits and (3) employer-provided accrued vacation, paid time off, and/or paid sick time (employer-paid leave). 

The takeaway for employers under the DOL opinion letter is that when an employee is on FMLA leave and is receiving state-paid PFML benefits, the employer cannot unilaterally require the employee to simultaneously use employer-paid leave.  

PFML Background

Generally speaking, PFML benefits – funded through employee payroll withholdings employers remit to the state government – provide state-paid partial wage replacement to qualifying employees while on a covered leave of absence, such as personal medical leave, family medical leave, and child bonding leave. 

In the absence of the federal government providing for or requiring paid leave under its own leave laws, a growing number of states have implemented PFML benefits in recent years, including California, Colorado, Connecticut, Delaware (effective Jan. 1, 2025), the District of Columbia, Maine (effective Jan. 1, 2025), Maryland, Massachusetts, Minnesota (effective Jan. 1, 2026), New Jersey, New York, Oregon, Rhode Island, and Washington. Other states have proposed similar legislation to implement PFML programs. 

PFML benefits can be a valuable source of income for employees during an otherwise unpaid leave of absence but are often not the only source. Many employers choose or are required under state or local law to provide employer-paid leave for certain absences, some of which may include the same leaves that qualify for PFML benefits. 

FMLA Background

The FMLA provides eligible employees with a leave of absence up to 12 weeks for certain purposes, including personal medical leave, family medical leave, and child bonding leave. 

While FMLA leave itself is unpaid, employers can – with one important exception noted below – require employees to simultaneously use employer-paid leave during FMLA leave. Employers often prefer required simultaneous use, both to ensure that employees have a source of pay during an otherwise unpaid leave, and to minimize the total amount of time that an employee is anticipated to be away from work in the foreseeable future. 

An exception to this rule is when an employee receives workers’ compensation benefits or disability plan benefits during FMLA leave, in which case the employer cannot unilaterally require the employee to simultaneously use employer-paid leave. Instead, in this scenario, simultaneous use of employer-paid leave is only permitted if the employer and employee consent to it.

New DOL Guidance on Integration with PFML Benefits

Borrowing from the logic of the simultaneous use exception described above, the DOL’s opinion letter clarifies that when an employee receives PFML benefits during FMLA leave, the employer  cannot unilaterally require the employee’s simultaneous use of employer-paid leave, though employers and employees may consent to it.

While the DOL’s opinion letter is not binding law, courts generally grant deference to agency guidance like it.

Employer Considerations

Employers should review their (and/or their third-party leave administrators’) policies and practices and consider appropriate steps, if any, if employees are required to use employer-paid leave (e.g., vacation, paid time off, or paid sick time) during a period of FMLA leave when the employee also receives PFML benefits. 

Given that the DOL opinion letter was issued in the final days of the Biden administration, the Trump administration may withdraw it, just like other recently withdrawn agency guidance across various sectors. However, even if the Trump administration does so, employers must still review FMLA-analogous state leave of absence laws to determine whether the same rule still applies, which is the case, for instance, in California and New York.