Can Employers Require Employees to Use PTO During a Medical Leave of Absence?
Rhonda Blum
Heard it on the Hotline
One of the most common questions employers face when an employee begins a medical leave of absence is whether the employee can be required to use available paid time off (PTO) during the leave. While the answer may seem straightforward, it has become increasingly complex due to the interaction between federal leave laws, state family and medical leave laws, and state-paid leave requirements.
If an employee qualifies for federal FMLA leave and the employer is not running federal FMLA concurrently with another protected leave entitlement or mandatory paid leave program, the employer may generally require the employee to use available paid time off (PTO) during the FMLA leave period.
However, a different rule applies when an employee is covered by Wisconsin FMLA, and the employer is running Wisconsin FMLA concurrently with federal FMLA. Under Wisconsin FMLA, employers cannot require employees to use accrued paid leave. Instead, employees may elect to use available PTO, subject to the employer’s approval and applicable leave policies.
As a result, during any period in which Wisconsin FMLA and federal FMLA run concurrently, the employer may not require the use of PTO. The employee may choose to use accrued paid leave, but its use cannot be required.
For example, assume an employee with a serious health condition needs a continuous six-week leave of absence. The first two weeks of leave would be protected under both Wisconsin FMLA and federal FMLA.
During this concurrent leave period, the employer could not require the employee to use available PTO because Wisconsin FMLA prohibits mandatory substitution of paid leave. The employee may, however, request to use accrued PTO during this time. Once the employee exhausts the two weeks of leave available under Wisconsin FMLA, the remaining four weeks of leave would be protected only under federal FMLA. At that point, the employer may require the employee to use available PTO, provided its policies permit such a requirement.
State paid leave laws may also affect an employer’s ability to require employees to use accrued leave. For example, Minnesota’s Earned Sick and Safe Time (ESST) law and Illinois’ Paid Leave for All Workers Act (PLAWA) generally give employees control over when they use accrued leave. If an employer maintains a combined PTO program designed to comply with these laws, employees typically have discretion over whether to use available leave during an absence. In most cases, employers cannot require employees to use ESST or PLAWA leave.
Finally, if an employee does not qualify for leave under any applicable protected leave law and is instead on a company-approved medical leave of absence, the employer may determine whether available PTO must be used during the leave. In these situations, employers should administer leave consistently and ensure their practices align with established company policies.
As leave laws continue to evolve, employers should carefully evaluate the specific leave protections that apply to each situation before requiring the use of accrued paid leave. Understanding the interplay between federal, state, and local leave laws is essential to ensuring compliance and avoiding unintended violations.
If you have questions about federal leave laws, state family and medical leave laws, and state-paid leave requirements, contact us for additional guidance and support. MRA members can reach out to our 24/7 HR Hotline.
