Question: What does it mean when an agency’s policy providing leave under the Family and Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) states “an employee may elect and the agency will require an employee to use paid accrued leaves”?
Answer: When an employee uses family and medical leave, the leave is unpaid under the FMLA and/or CFRA. Any policy language that says words to the effect of “an employee may elect and the agency will require an employee to use paid accrued leaves…” is likely based on the FMLA and CFRA regulations, which allow either: (1) an employee to elect to use their accrued paid leaves to cover their otherwise unpaid FMLA/CFRA leave; or (2) an employer to require an employee use their accrued paid leaves to cover the otherwise unpaid FMLA/CFRA leave. (29 C.F.R. section 825.207(a); 2 C.C.R. 11092(b)(1).) The regulations allow these two different pathways – one from the employee’s election and one from the employer’s requirement – to substitute accrued paid leaves during otherwise unpaid FMLA/CFRA leave.