Oakland, CA asked in Employment Law for California

Q: Can an employer require me to use PTO while receiving the California Paid Family Leave benefit from SDI?

I will be taking time off per FMLA/CFRA and my employer is based in NY but has an office here in CA.

1) Can they require me use PTO for the 6 weeks I will be collecting the California Paid Family Leave (PFL) benefit from the State Disability Insurance program?

From reading 29 CFR SS825.207(d) my opinion is that they cannot require taking PTO.

2) My company offers a 3-week "Paid Family Leave" benefit. I received an email from HR stating at the that leave is to run concurrently with the 6 week California PFL, however this is not in any company document/policy. Can they require me to apply for the California PFL benefit as a condition for receiving the company's 3-week paid benefit?

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2 Lawyer Answers

Louis George Fazzi

  • Jess Ranch, CA
  • Licensed in California

A: You must read 29 CFR 825.207 (a) and (b), which seems to indicate that the employer may require you to apply for the California paid leave if you want to be paid during your FMLA leave, which is otherwise unpaid. As I read it, you are entitled to FMLA leave, which is normally unpaid, but as a condition of obtaining the paid benefit the employer offers, you may be required to seek the applicable state benefits in order to get paid. However, this to me does not indicate that you must take your personal time off (PTO) which you accrued as part of your employment. If the family leave is due to a disability (which you have not indicated) such as pregnancy and leave to give birth to your child, I don't believe in California you can be compelled to use your accrued personal time off (PTO) in order to get your FMLA leave.

It is a very complicated scheme and California law is more liberal than the Federal benefit. There are lawyers who are very experienced with these issues in the Bay area, and you should seek them out for help with your situation.

Neil Pedersen

  • Irvine, CA
  • Licensed in California

A: PTO, other than required paid sick leave, is a discretionary employee benefit and the law does very little to regulate its use. The employer has broad rights to say when and under what circumstances it may be or must be used. There is nothing unlawful about an employer requiring you to use accrued PTO when you are on any kind of leave. There is nothing unlawful about your employer requiring you to use your unused PTO while you are on FMLA/CFRA leave. The same is true for any employee benefit paid leave.

Good luck to you.

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