Substitution of Leave

The new regulations clarify that an employer can require an employee to take paid leave in any increment in which they otherwise allow paid leave to be taken (such as one day) or the employee may take a partial day of unpaid FMLA leave. Thus an employee would not be entitled to take a partial day of paid leave if the employer’s policies did not allow employees not taking FMLA leave to do so.

The new regulations also deleted a portion of the section on substituted leave which provided different rules for substitution of different types of paid leave, such as substitution of vacation time rather than sick leave.  The new regulations have changed this so that the employer may require an employee to take any form of paid leave (for which the employee is eligible) concurrently with FMLA leave.

Employers may require that employees follow paid leave policies in requesting leave in order to substitute paid leave. However, the regulations clarify that if an employee fails to follow those paid leave rules, the employee is still entitled to take unpaid FMLA leave.