Can we Require Employees to Use Accrued Time During Protected Leaves?

Question: We have a few employees going out on protected leaves soon. Our sales manager, Maria, will be taking 10 weeks of Pregnancy Disability Leave (PDL), and she has three weeks of accrued vacation in her bank. Maria exhausted all her sick leave. Can we require Maria to use accrued vacation time during her leave?

Similarly, another employee, Mark, is going out on CFRA/FMLA to care for his sick parent. Mark has no vacation time, but he does have 80 hours of mandatory paid sick leave (PSL) available. Can we require him to exhaust PSL during his CFRA/FMLA leave?

Short Answer: In both of these cases, the answer is no. The employer may not require the use of accrued time off in these specific scenarios.

Long Answer: It’s Quite Complex

The rules regarding when an employer can require the use of accrued time are complex. They vary depending on the type of protected leave. For PDL, CFRA, and FMLA leaves, the rules also depend on whether the employee is receiving wage replacement benefits, such as State Disability Insurance (SDI) and Paid Family Leave (PFL), workers’ compensation, etc. Want the full answer to these common examples? Keep reading below.

Be Careful with Mandatory Paid Sick Leave

First, we do not recommend ever requiring an employee to use their mandatory paid sick leave (PSL) required by California. While the law itself is silent on whether an employer can ever force an employee to use mandatory PSL for a covered purpose, Labor Commissioner guidance frequently references the employee’s right to choose when to use PSL and how much to use. The same recommendation applies to PTO policies used to satisfy mandatory paid sick leave requirements.

• However, if you have a separate policy that provides supplemental sick leave beyond what is legally required, there may be circumstances when you can require employees to use their supplemental time during protected leaves.

Maria’s Pregnancy Disability Leave (PDL)

California’s PDL law is clear that you cannot require an employee to use their vacation or paid time off (PTO) during PDL under any circumstances.

While the PDL law allows the employer to require PSL, again, we do not recommend requiring employees to use legally-mandated PSL, as stated above.

• Note: CFRA and PDL never run concurrently, but PDL and FMLA often do. If Maria is FMLA-eligible, her leave time may qualify as both PDL/FMLA. While FMLA’s rules do allow employers to require the use of vacation or PTO in some circumstances (see below), if the leave is also for PDL, then the stricter rule applies, meaning you still cannot require Maria to use her vacation or PTO.

In this case, Maria has no sick leave available, but she can choose to use her vacation time. If she doesn’t want to use it, you cannot force her to do so.

Mark’s CFRA/FMLA Leave

Now, let’s focus on Mark, who is taking California Family Rights Act (CFRA)/Family and Medical Leave Act (FMLA) leave to care for his sick parent.

When CFRA/FMLA leave is unpaid (meaning Mark is not receiving disability/wage replacement benefits, such as Paid Family Leave from the EDD), then the employer can maintain a policy requiring employees to use vacation or PTO during that time.

In our scenario, Mark doesn’t have any available vacation time, so what about his sick leave?

CFRA and FMLA do allow employers to require the use of PSL when the employee is out due to their own serious health condition; however, as stated above, we never recommend requiring an employee to use their mandatory PSL (or PTO that is used to satisfy California PSL requirements) based on the lack of clear guidance.

In any case, Mark is out to care for his parent, not due to his own serious health condition, so you can’t require him to use his PSL.

Integration of Wage Replacement Benefits

During periods of FMLA or CFRA leave where employees are receiving wage replacement benefits, such as SDI, PFL, or workers' compensation benefits, the employer cannot require that they use their paid time off, including paid sick leave, vacation, or PTO, while the employee is receiving the benefits. However, the employer and employee can mutually agree to allow the employee to use their accrued time to supplement their SDI/PFL payments.

We know the alphabet soup of leave law acronyms and nuances can be overwhelming. CEA members: rest assured that you can call your HR advisors and get clarification any time Monday through Friday, from 8 am-5 pm, at 800.399.5331.