• Akiko Thayer

Do I have to use my vacation or sick time while on maternity leave?

Updated: Oct 6

Using accrued vacation, sick, or PTO is a good way to maximize pay while out on maternity leave. On the flip side, holding onto your accrued time is also beneficial in case you need to use it after returning from leave. But, is that your choice to make, or can your employer require the use accrued vacation, sick, or PTO during maternity leave?


I often get asked this question from clients when discussing ways to maximize pay while out on maternity leave. I'm also shocked to see so many employers get it wrong in their employee handbooks and leave policies! (SMH!)


So, what's the answer? The answer is: it depends on the type of leave you're on and what type of accrued time you're talking about.


In this post, we'll discuss the rules for each "category" of maternity leave, based on which leave law(s) you are eligible for. But first, in case you don't know which category you fall into, here's a refresher:


1. PDL + FMLA + CFRA

You are eligible for PDL, FMLA and CFRA if you've answered YES to ALL of these questions.

  • Does your employer have at least 5 employees? (Eligibility for PDL)

  • Does your employer have at least 50 employees within a 75-mile radius of your worksite? (Eligibility for FMLA/CFRA)

  • Have you worked for your employer for at least 1 year? (Eligibility for FMLA/CFRA)

  • Will you have worked at least 1,250 hours in the 12 month period immediately preceding the start of your leave? (Eligibility for FMLA/CFRA)

2. PDL Only

You are eligible for PDL only if you've answered YES to the first PDL-eligibility question, but NO to any one of the other questions.

  • Does your employer have at least 5 employees? (Eligibility for PDL)

  • Does your employer have 20-49 employees (eligibility for NPLA) or at least 50 employees (eligibility for FMLA/CFRA) within a 75-mile radius of your worksite?

  • Have you worked for your employer for at least 1 year? (Eligibility for FMLA/CFRA/NPLA)

  • Will you have worked at least 1,250 hours in the 12 month period immediately preceding the start of your leave? (Eligibility for FMLA/CFRA/NPLA)

3. PDL + NPLA

You are eligible for PDL and NPLA if you've answered YES to ALL of these questions:

  • Does your employer have at least 5 employees? (Eligibility for PDL)

  • Does your employer have 20-49 employees within a 75-mile radius of your worksite? (Eligibility for NPLA)

  • Have you worked for your employer for at least 1 year? (Eligibility for NPLA)

  • Will you have worked at least 1,250 hours in the 12 month period immediately preceding the start of your leave? (Eligibility for NPLA)


1. The "PDL + FMLA + CFRA" Category


During the disability portion of your leave under PDL and FMLA (running concurrently), the following rules apply:


Vacation and PTO: Your employer cannot require you to use accrued vacation or PTO during the disability portion of your leave.


While FMLA allows an employer to require the use of vacation or PTO during the unpaid portion of FMLA, an exception to this is when the leave is also under PDL. This is because PDL specifically prohibits an employer to require the use of vacation/PTO while an employee is on PDL leave. PDL regulations only allow the employee to elect to use vacation or PTO. The employer may not require it.


Sick time: If you are receiving pay under a disability benefit plan (such as state Disability Insurance (DI)) during the disability portion of your leave, then your employer cannot require you to use accrued sick time during that period.


Per FMLA, your employer can only require the use of sick time during the unpaid portion of your FMLA leave. As such, if you're claiming DI, the only period in which your employer can require you to use sick time is during the 7-day unpaid waiting period for DI. This is because while an employee is receiving DI while on FMLA, the law does not consider it to be an “unpaid” leave.


During the bonding portion of your leave under CFRA, the following rules apply:


Usage of vacation, PTO, or sick while receiving Paid Family Leave (PFL): Your employer cannot require you to use PTO, sick time, or vacation while receiving PFL. Similar to FMLA, this is because the period in which you are receiving PFL while on CFRA leave is not considered an “unpaid” leave.


Vacation or PTO: You may elect to use or your employer may require you to use any accrued vacation time or PTO during the unpaid portion of your CFRA leave (example: the remaining weeks of your CFRA leave once PFL exhausts).


Sick time: CFRA regulations stipulate that sick time may only be used (whether required or elected) if the CFRA leave is for the employee's own serious health condition, unless it is mutually agreed between the employer and the employee.


2. The "PDL Only" Category


During the disability portion of your leave under PDL, the following rules apply:


Vacation and PTO: At your option, you can choose to use accrued vacation or PTO during your leave under PDL.


PDL only allows the employee to elect to use vacation or PTO. The employer may not require it.


Sick time: Your employer may require or you may choose to use any available sick time during the unpaid portion of your PDL.


If you are receiving DI benefits, your employer can require the use of sick time during the unpaid waiting period for DI.


If you're only eligible for PDL, you are not entitled to law-mandated bonding leave under CFRA or NPLA. You can request an additional leave of absence following your PDL leave, and any "rules" around PTO, vacation, or sick time usage would be up to your employer's policy (provided that they enforce such policies fairly and consistently across the board). Also, you can file a PFL claim for the duration you are on an approved leave of absence from your employer.


(Note, if you don’t work for an employer with 20-49 or 50+ employees you'll never meet NPLA or CFRA eligibility. However, if you're currently ineligible due to not having worked for your employer for one year or not having worked at least 1,250 hours, you will become CFRA/NPLA eligible and entitled to baby bonding leave once you meet those requirements.)


3. The "PDL + NPLA" Category


During the disability portion of your leave under PDL, the same vacation, PTO, and sick time restrictions apply as they do above in the "PDL only" category.


During the bonding portion of your leave under NPLA, the same rules apply as CFRA as described above.


Now that you know when your employer can and cannot require you to use accrued time, let's discuss the best places to use vacation, PTO, and sick while on maternity leave.


7-day unpaid waiting period for Disability Insurance (DI). As you may know, everyone must serve a 7-day unpaid waiting period before DI kicks in. If you have 5 days of sick time accrued, use it here to get paid 100% of your wages during the waiting period. If you don't have sick time, use PTO or vacation - but I would use sick time first.


Of note, any type of wages paid by your employer during the waiting period are not in conflict with DI benefits.


Unpaid CFRA/NPLA leave. Of your 12 workweeks of CFRA or NPLA, the first 8 weeks is partially paid through PFL. That means any remaining weeks of CFRA or NPLA is completely unpaid. If you don't want to go unpaid, this is another good time to use accrued PTO or vacation.


Do note however, as mentioned above, your employer may require the use of PTO or vacation during the unpaid period of CFRA or NPLA.


Top up your DI and PFL benefits using sick, PTO or vacation. You can use sick time, vacation, or PTO to supplement your DI or PFL benefits, so long as the combined amount does not exceed 100% of your normal weekly gross wages.


Hope that helps to clarify when and how you can use your accrued time off. These are important elements of your leave, so make sure your employer is enforcing requirements accurately!

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