Home » Commentary » Can an Employee Use Their PTO to Get More Than 12 Weeks of FMLA Leave?

Amanda DeMatteis: Hi, Josh.

Josh Goodbaum: Hi, Amanda. What are we talking about today?

DeMatteis: Well, we have another viewer question, which we love. I’m gonna read it, and then we’ll talk about how we’re going to attack it. It’s an interesting question:

“If I have 4 weeks vacation and get approved for FMLA” – which, of course, is 12 weeks – “to care for a needing parent, can I be away from work for 16 weeks (4 weeks of PTO and 12 weeks of FMLA), or does my 4 weeks of PTO count against the 12 weeks of FMLA?”

There is a lot to unpack here. So, I thought what we would do is chat about, really, the interaction between paid time off (PTO), FMLA, and CT Paid Leave, and as we know, there’s some distinctions between state law and federal law in answering this question. Let’s have at it.

Goodbaum: Yeah, it’s important to point out, Amanda, that this answer is going to apply mostly the same for employees around the country, but there can be state-specific differences. Connecticut, for example, has the Connecticut Paid Leave program, which provides compensation to folks who are out on FMLA. But let’s start at the beginning.

The federal Family & Medical Leave Act provides for up to 12 weeks of job-protected leave. You get to be out for up to 12 weeks for your serious health condition or a family member’s serious health condition and then come back to your job. You can’t get more than 12 weeks of job-protected leave unless your employer voluntarily gives it to you. So it’s not an end-around to take four weeks of PTO and then 12 weeks of job-protected leave. If anything, that might undermine your cause with your employer, because they might think you’re being misleading, potentially even fraudulent, and that is a sure way to get yourself in some trouble.

It’s important here to know about how PTO interacts with FMLA for the purposes of compensation. Under the federal FMLA, your employer can force you to use your PTO – all of your PTO – concurrent with your FMLA leave. So, if you have four weeks of PTO and 12 weeks of FMLA leave, they can say, “Hey, you’ve got to use that four weeks of PTO and when you come back after those 12 weeks, you will start at 0 again and accrue more PTO.” This means you will get paid for those four PTO weeks but not for the next eight weeks.

The Connecticut FMLA is a little bit different. The Connecticut FMLA says an employer can force an employee to use PTO during their FMLA leave, but they have to allow the employee, if the employee so chooses, to retain at least two weeks of PTO.

DeMatteis: So, that means when you come back from your protected leave, you’re not starting from zero on your accrual. Instead, you have two weeks of PTO that you can use at your disposal. Okay, very helpful.

Now, let’s throw a different wrench into this. Our question asks whether you can increase the amount of FMLA leave in the context of caring for a needing parent. Now, you’ve already touched on the fact that you can’t increase that 12 weeks of protected leave, but is there a way for you to increase the amount of time that you are out of work through another federal or state law?

Goodbaum: Yes, there is, but only sometimes. So, if you are caring for a needing parent or for any other member of your family other than yourself, you’re limited to 12 weeks of job-protected leave. If you have a serious health condition yourself and the health condition qualifies as a disability, then after you’ve exhausted your 12 weeks of job-protected leave, you could ask under the Americans with Disabilities Act (that’s the federal law) or your state equivalent (here in Connecticut, it would be the Connecticut Fair Employment Practices Act) for an additional amount of job-protected leave.

When you ask for leave as a reasonable accommodation for your disability, you want to make sure that it’s supported by your doctor and that you’re asking for a discrete amount of time. (I’d start with an additional two weeks or an additional two weeks; it should not be open-ended.)

You probably only want to pursue this strategy if you’re reasonably certain that you’re going to be able to rehab enough to be able to return to work after one or two discrete leaves. You should not be asking for repeated two or four-week extensions on the leave.

But if really what you need is not 12 weeks, but 16 weeks, most courts likely would find that an additional four weeks of job-protected leave would be a reasonable accommodation under the Americans with Disabilities Act or the corollary provision of state law. And since most courts would probably find that most employers are going to give it to you in that circumstance, if your employer denies you that reasonable accommodation of an additional four weeks of job-protected leave, that’s the time to go talk with an employment lawyer.

Frankly, though, if you find yourself in this situation where you need not just the 12 weeks of FMLA but potentially more leave than that, that might also be a good time to go talk with an employment lawyer because, as this conversation has probably made clear, Amanda, this stuff is pretty complicated.

DeMatteis: Yeah, absolutely, and you’re triggering a number of different state and federal laws, and it certainly matters whether or not you are the person with a disability or a family member is the person with a disability because that impacts your rights to reasonable accommodations.

This was hugely helpful. Thanks, Josh, and thank you to our viewer for the question. We’ll see you next time. Take care.

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