Connecticut Administrative Code › Title 31 - Labor › 51rr - Family and Medical Leave for School Paraprofessionals › Section 31-51rr-21 - Substitution of paid leave (29 CFR Section 825.207)

Current through July 10, 2024
(a)
			 Generally, FMLA leave is unpaid leave. However, under the circumstances
			 described in this section, FMLA permits an eligible employee to choose to
			 substitute accrued paid leave for FMLA leave. If an employee does not choose to
			 substitute accrued paid leave, the employer may require the employee to
			 substitute accrued paid leave for unpaid FMLA leave. The term "substitute"
			 means that the paid leave provided by the employer, and accrued pursuant to
			 established policies of the employer, will run concurrently with the unpaid
			 FMLA leave. Accordingly, the employee receives pay pursuant to the employer's
			 applicable paid leave policy during the period of otherwise unpaid FMLA leave.
			 An employee's ability to substitute accrued paid leave is determined by the
			 terms and conditions of the employer's normal leave policy. When an employee
			 chooses, or an employer requires, substitution of accrued paid leave, the
			 employer must inform the employee that the employee must satisfy any procedural
			 requirements of the paid leave policy only in connection with the receipt of
			 such payment. If an employee does not comply with the additional requirements
			 in an employer's paid leave policy, the employee is not entitled to substitute
			 accrued paid leave, but the employee remains entitled to take unpaid FMLA
			 leave. Employers may not discriminate against employees on FMLA leave in the
			 administration of their paid leave policies.
(b) If neither the employee nor the employer
			 elects to substitute paid leave for unpaid FMLA leave under the above
			 conditions and circumstances, the employee will remain entitled to all the paid
			 leave which is earned or accrued under the terms of the employer's
			 plan.
(c) If an employee uses paid
			 leave under circumstances which do not qualify as FMLA leave, the leave will
			 not count against the employee's FMLA leave entitlement. For example, paid sick
			 leave used for a medical condition which is not a serious health condition or
			 serious injury or illness does not count against the employee's FMLA leave
			 entitlement.
(d) Leave taken
			 pursuant to a disability leave plan would be considered FMLA leave for a
			 serious health condition and counted in the leave entitlement permitted under
			 FMLA if it meets the criteria set forth above in sections
			 31-51rr-3 to
			 31-51rr-6, inclusive, of the
			 Regulations of Connecticut State Agencies. In such cases, the employer may
			 designate the leave as FMLA leave and count the leave against the employee's
			 FMLA leave entitlement. Because leave pursuant to a disability benefit plan is
			 not unpaid, the provision for substitution of the employee's accrued paid leave
			 is inapplicable, and neither the employee nor the employer may require the
			 substitution of paid leave. However, employers and employees may agree, where
			 state law permits, to have paid leave supplement the disability plan benefits,
			 such as in the case where a plan only provides replacement income for
			 two-thirds (2/3) of an employee's salary.
(e) The Act provides that a serious health
			 condition may result from injury to the employee "on or off" the job. If the
			 employer designates the leave as FMLA leave in accordance with section
			 31-51rr-31(d) of
			 the Regulations of Connecticut State Agencies, the leave counts against the
			 employee's FMLA leave entitlement. Because the workers' compensation absence is
			 not unpaid, the provision for substitution of the employee's accrued paid leave
			 is not applicable, and neither the employee nor the employer may require the
			 substitution of paid leave. However, employers and employees may agree, where
			 state law permits, to have paid leave supplement workers' compensation
			 benefits, such as in the case where workers' compensation only provides
			 replacement income for two-thirds (2/3) of an employee's salary. If the health
			 care provider treating the employee for the workers' compensation injury
			 certifies the employee is able to return to a "light duty job" but is unable to
			 return to the same or equivalent job, the employee may decline the employer's
			 offer of a "light duty job." As a result the employee may lose workers'
			 compensation payments, but is entitled to remain on unpaid FMLA leave until the
			 employee's FMLA leave entitlement is exhausted. As of the date workers'
			 compensation benefits cease, the substitution provision becomes applicable and
			 either the employee may elect or the employer may require the use of accrued
			 paid leave.
(f) Section 7(o) of the
			 FLSA and state law permit public employers under prescribed circumstances to
			 substitute compensatory time off accrued at one and one-half hours for each
			 overtime hour worked in lieu of paying cash to an employee when the employee
			 works overtime hours as prescribed by the Act. This section of the FLSA limits
			 the number of hours of compensatory time an employee may accumulate depending
			 upon whether the employee works in fire protection or law enforcement (480
			 hours) or elsewhere for a public agency (240 hours). In addition, under the
			 FLSA, an employer always has the right to cash out an employee's compensatory
			 time or to require the employee to use the time. Therefore, if an employee
			 requests and is permitted to use accrued compensatory time to receive pay for
			 time taken off for an FMLA reason, or if the employer requires such use
			 pursuant to the FLSA, the time taken may be counted against the employee's FMLA
			 leave entitlement.