Among the many questions California employers face when navigating the ins and outs of various disability leave laws is under what circumstances an employee may choose or be required to utilize paid time off for an otherwise unpaid leave of absence. When dealing with these issues, it is important to consider some nuanced differences between various federal and California state laws.   The following are some guidelines for employers to keep in mind:

Federal Family and Medical Leave Act (FMLA)

• An employee may choose to use accrued paid time off during an unpaid FMLA leave of absence.

  • Where the leave of absence is for the birth or placement of a child for adoption or foster care, an employee may use paid vacation or personal leave but not sick leave during an otherwise unpaid FMLA leave.

  • When an FMLA leave is for the serious health condition of an employee or an employee’s covered family member, the employee may use paid vacation, personal, or sick leave, with the caveat that sick leave may not be used where the employee otherwise would not be able to use sick leave pursuant to the employer’s policies.

• An employer may require an employee to substitute paid leave for unpaid FMLA leave if the employee does not voluntarily opt to do so. In such circumstances, an employer is required to notify an employee of the requirement to use paid leave during an FMLA leave within 5 business days after the employee provides notice of the need for leave.

California Family Rights Act (CFRA)

• An employee may opt to use – and an employer may require that an employee use – accrued vacation or PTO during an otherwise unpaid leave under the CFRA. (Pregnancy-related leaves of absence are not covered under the CFRA.)

• An employer may not require an employee to use accrued sick leave during an otherwise unpaid CFRA leave unless the leave is for the employee’s own serious health condition or for another mutually agreed-upon reason.

California Pregnancy Disability Leave Law (PDLL)

• An employee who takes a pregnancy-related leave of absence under California’s PDLL may choose to use paid time off during such a leave.

  • An employee may elect to use accrued paid vacation or PTO (even when the PTO is undifferentiated) during a leave of absence otherwise unpaid under the PDLL.

  • An employee may choose to use accrued paid sick time during an unpaid PDLL leave.

• An employer may require an employee to use paid time off during a leave under the PDLL.

  • An employer may require an employee to use accrued paid vacation or PTO during a PDLL leave.

  • An employer may not require an employee to use vacation or PTO during a leave under the PDLL.