Navigating the Overlap: FMLA and PFML

Compliance Human Resources State Law Updates

What to do when FMLA and PFML happen at the same time

Employers today face a complex web of federal, state, and local laws governing employee leave for family and medical reasons. A particularly tricky area is the intersection of the federal Family and Medical Leave Act ( FMLA ) and state-paid family medical leave ( PFML ) programs.

To clarify, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issued guidance to address how employers must handle situations where an employee’s leave qualifies under both the FMLA and a state or local PFML law.

DOL Clarifies Interaction of FMLA and PFML

The DOL’s opinion letter states that employers cannot require employees to use their employer-provided paid time off (such as vacation time) while taking leave under the FMLA and receiving pay under a state or local PFML program. The WHD clarified that the FMLA regulations regarding substituting paid leave also apply to leave taken under a PFML program, similar to when an employee is on FMLA leave and receiving benefits under a paid disability plan.

Understanding State PFML Programs

Many states have implemented PFML programs. Thirteen states and the District of Columbia have mandatory PFML programs, and more states are considering similar legislation. While each state program has its own specific rules, these programs generally offer income replacement for a certain number of weeks to employees who need to take time off for qualifying family reasons (like the birth of a child) or medical reasons (like the employee’s own serious health condition). Eligibility for leave and benefits under a state PFML program often coincides with eligibility for unpaid leave under the FMLA.

As of May 6, 2025, states with PFML programs are:

California
Colorado
Connecticut
Delaware
Maine
Massachusetts
Maryland
Minnesota
New Jersey
New York
Oregon
Rhode Island
Washington and the District of Columbia

Key FMLA Principle: Substitution of Paid Leave

Under FMLA regulations, employees can choose, or employers can require, the substitution of accrued employer-provided paid leave (like vacation or sick leave) for any portion of the unpaid FMLA leave period. However, this rule changes when an employee taking FMLA leave receives payments under a disability plan or workers’ compensation program. In those situations, the employer cannot require the employee to use accrued employer-provided paid time off.

DOL Guidance: Key Takeaways for Employers

The DOL’s recent guidance offers important clarification for employers navigating the intersection of FMLA and PFML:

If an employee takes leave under a state or local PFML program and the FMLA also covers that leave, the leave must be designated as FMLA leave. You must also notify the employee of this designation, including how much leave will count against their FMLA entitlement.
Employees may receive compensation from a state or local PFML program during FMLA leave. In that case, the FMLA substitution provision does not apply to the compensated leave portion. Therefore, neither the employer nor the employee can unilaterally require using employer-provided paid leave for leave already compensated by the PFML program.
If the state or local PFML program doesn’t fully compensate the employee’s FMLA-covered leave, the employer and employee can agree (if state law allows) to use the employee’s accrued employer-provided paid leave to supplement the PFML payments, but the employer cannot mandate it.
Suppose an employee is eligible for a state or local PFML program in circumstances that don’t qualify as FMLA leave. In that case, the employer cannot count that leave against the employee’s FMLA entitlement.
When an employee’s leave under a state or local PFML program ends, it may be before they fully utilize their FMLA entitlement. In that instance, the employee still has access to FMLA protections. At that point, the employee can elect, or the employer can require, the substitution of employer-provided paid leave, consistent with FMLA rules.

Example Scenario Provided by DOL

The DOL provides a helpful example:

Yvette takes eight weeks of FMLA leave to care for her mother after surgery. Her employer designates this as FMLA leave.
Caring for a parent with a serious health condition also qualifies under her state’s paid family leave program. She receives benefits that replace two-thirds of her regular income for six weeks.
During the six weeks Yvette receives state PFML benefits, her employer cannot require her to use accrued vacation to get full pay in addition to the state benefits. Yvette also cannot unilaterally elect to do so.
However, if her state allows using accrued paid leave concurrently with state-paid leave, Yvette and her employer can agree that she’ll use one-third of her vacation time each week to supplement the state benefit and receive her full pay.
In the final two weeks of Yvette’s FMLA leave, she has exhausted her state PFML benefits. This portion of leave is unpaid, and FMLA substitution provisions apply. Yvette can elect to use her accrued paid vacation time during those final two weeks.

What To Do Next

Review Your Leave Policies: Ensure your current leave policies comply with FMLA regulations and applicable state and local PFML laws.
Understand State PFML Laws: Familiarize yourself with the specific requirements of PFML programs in the states where you have employees. These programs vary significantly.
Train HR and Managers: Educate your HR staff and managers on the DOL’s new guidance and how to administer leave when FMLA and PFML overlap.
Communicate with Employees: Clearly communicate employees’ rights and responsibilities regarding FMLA and PFML, including how paid leave interacts with these programs.
Seek Nextep HR Advice: Consult with your Nextep HR Expert to ensure your policies and practices are fully compliant and to address any specific questions or concerns.

Employers can effectively navigate the complexities of FMLA and PFML by staying educated and taking proactive steps, ensuring compliance and supporting their employees.

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