C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER C—OTHER LAWS › PART 825—THE FAMILY AND MEDICAL LEAVE ACT OF 1993 › Subpart B—Employee Leave Entitlements Under the Family and Medical Leave Act

29 C.F.R. § 825.207

Substitution of paid leave

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(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. See § 825.300(c). 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 §§ 825.112 through 825.115. 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 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 § 825.300(d), 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 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. See also §§ 825.210(f), 825.216(d), 825.220(d), 825.307(a) and 825.702(d)(1) and (2) regarding the relationship between workers' compensation absences and FMLA leave.

(f) Section 7(o) of the Fair Labor Standards Act (FLSA) permits 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.

Notes of Decisions
Cited in 86 cases (21 in the last 5 years), 1994–2026 · leading case: Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274 (6th Cir. 2012).
Sort: Relevance Newest Treatment
Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274 (6th Cir. 2012). · cites it 6× “2009) (citing 29 C.F.R. § 825.207 (a)). "`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.”
Martin Allen v. Butler Cnty. Commissioners, 331 F. App'x 389 (6th Cir. 2009). · cites it 15× “29 C.F.R. § 825.207 (a) (emphasis added).”
Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136 (D.N.M. 2013). · cites it 8× “’ ” Response at 17 (quoting 29 C.F.R. § 825.207 (A)). They *1161 assert that the regulation leaves the substitution at the employee’s discretion, and the Plaintiffs never requested to use the FMLA leave instead of their accrued paid leave.”
Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199 (11th Cir. 2001). · cites it 3× “; 29 C.F.R. § 825.207 (a) (2000) (“FMLA permits an eligible employee to choose to substitute paid leave for FMLA leave.”
Alice M. Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. 2007). · cites it 9× “Citing 29 C.F.R. § 825.207 (d)(1), Repa argued that because she was receiving temporary disability benefits through the WHF, the FMLA “provision for substitution of paid leave is inapplicable,” and therefore Roadway should restore her vacation and sick time.”
Bosse v. Baltimore Cnty., 692 F. Supp. 2d 574 (D. Maryland 2010). · cites it 5× “According to Plaintiff, “29 CFR § 825.207 permits an employer to offer an employee to take and exhaust the employee’s available paid leave prior to taking unpaid leave,” id.”
Hewett v. Triple Point Tech., Inc., 171 F. Supp. 3d 10 (D. Conn. 2016). · cites it 3× “An employer may require an employee to exhaust her paid leave prior to requesting FMLA leave, and an employer may also decide whether such leave should run consecutively or concurrently. Id. § 2612(d)(l)-(2) (“An eligible employer may elect, or .”
Noorjahan Ramji v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233 (11th Cir. 2021). · cites it 2× “29 C.F.R. § 825.207 (e). But Ramji never had the opportunity to decide between taking a light-duty position or taking unpaid FMLA leave.”
Penny Bachelder Mark Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001). “§ 2612 (d)(2) (permitting employers to require employees to use their accrued paid leave time for FMLA-qualifying purposes); 29 C.F.R. § 825.207 (b) (same); 29 U.S.C.”
Orr v. City of Albuquerque, 531 F.3d 1210 (10th Cir. 2008). · cites it 2× “NOTES [1] The relevant Department of Labor ("DOL") regulations implementing the FMLA generally allow the use of compensatory time for FMLA purposes, 29 C.F.R. § 825.207 (i); 29 C.F.R. § 553.”
Smith v. Westchester Cnty., 769 F. Supp. 2d 448 (S.D.N.Y. 2011). “) 20 While an employer may require an employee to substitute accrued paid leave for unpaid FMLA leave, see 29 C.F.R. § 825.207 (a), “the employer must inform the employee of this designation at the time of designating the FMLA leave,” id.”
Dyamond Davis v. Illinois Dep't of Human Servs., 137 F.4th 641 (7th Cir. 2025). · cites it 5× “29 C.F.R. § 825.207 (a). In such cases, any accrued paid leave “will run concurrently with the unpaid FMLA leave,” and the employee will be paid during the leave that would otherwise go unpaid.”
Show all 86 citing cases →
— 29 C.F.R. § 825.207(a) — 5 cases
Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136 (D.N.M. 2013). “’ ” Response at 17 (quoting 29 C.F.R. § 825.207 (A)). They *1161 assert that the regulation leaves the substitution at the employee’s discretion, and the Plaintiffs never requested to use the FMLA leave instead of their accrued paid leave.”
Yanklowski v. Brockport Cent. Sch. Dist., 794 F. Supp. 2d 426 (W.D.N.Y. 2011).
Kemper v. Springfield Twp., 2012 Ohio 2461 (Ohio Ct. App. 2012).
Adams v. Lakeview Med. Ctr., LLC (E.D. La. 2022).
State ex rel. Professionals Guild of Ohio v. State Emp. Relations Bd., 2020 Ohio 3289 (Ohio Ct. App. 2020).
— 29 C.F.R. § 825.207(b) — 1 case
Laura McClelland v. Mike Morath, Comm'r of Educ. in His Off. Capacity; & Weatherford Indep. Sch. Dist. (Tex. App. 2025).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.